HomeMy WebLinkAbout06 - Professional Services Agreement for ESHA StudyCITY OF NEWPORT BEACH
�d COMMUNITY AND ECONOMIC DEVELOPMENT Hearing Date: May 14, 2002
PLANNINGDEPARTMENT Agenda Item No.: 6
33 o NEWPORT BOULEVARD Staff Person: Patrick J. Alford
NEWPORT BEACH, CA 92658 (949) 644 -3235
(949) 644- -0°O% FAX (949) 644-S279
REPORT TO THE MAYOR AND CITY COUNCIL
SUBJECT: Professional Services Agreement for ESHA Study
SUMMARY: A professional services agreement for consulting services to conduct
field studies of environmentally sensitive habitat areas (ESHAs) and
prepare updated policy and regulation recommendations for the
updates of the Local Coastal Program (LCP) and the General Plan.
ACTION: Approve the professional services agreement with Coastal Resources
Management.
Background
SB 516 requires the City to submit a complete application for an LCP to the California Coastal
Commission (CCC) on or before June 30, 2003. In an initial review, the CCC staff stated that
the City needed to identify environmentally sensitive habitats and adopt ordinances to restrict
development adjacent to these areas. In addition, the City is currently in the process of
updating the General Plan. Section 65302 of the Government Code mandates that the
General Plan include a conservation element and an open space element.
Analysis
In anticipation of the need for technical studies to conduct the update of the LCP and the
conservation and open space elements of the General Plan, and the General Plan Update
environmental impact report, staff solicited a proposal from Coastal Resources Management
(CRM). This was done in lieu of the standard request for proposals (RFP) process due to the
short amount of time available to update the LCP. CRM was selected because of their
familiarity with the City from previous biological studies.
The proposal includes a review of all existing LCP and General Plan policies and data relating
to ESHAs. The consultant's biologists will conduct field studies of all ESHAs within the City's
corporate limits, the sphere of influence, and the adjacent coastline. The field studies will
identify and describe each ESHA, assess their condition, identify potential threats, and
proposed methods of protection. The data collected by the consultant will include data
layers and other graphics for incorporation into the City's geographical information system
(CIS). The consultant will also draft LCP and General Plan policies relating to ESHAs.
The project will be conducted in two parts. Priority will be given to the survey of ESHAs in
the Coastal Zone and the update of LCP policies. This will be completed prior to June 30,
2002. The survey of ESHAs outside of the Coastal Zone and the update of General Plan
policies will be completed by October 2002.
The total not -to- exceed cost of the project is $67,684.00.
Proiect Fundine
We anticipate sufficient appropriation savings in the General Fund to cover General Plan
Update expenditures. Council Policy F -2 allows the City Manager to reprogram
appropriations within an individual fund to cover insufficient appropriations in an individual
department. However, if there are not sufficient appropriations to cover this shortfall within
the General Fund by the end of the FY 2001 -02, a formal budget amendment, appropriating
General Fund Reserves to cover this and other General Plan Update expenditures.
Submitted by: Prepared by:
SHARON Z. WOOD PATRICK J. ALFORD
Assistant City Manager Senior Planner
Exhibits:
1. Proposed Scope of Work.
2. Draft Professional Services Agreement
ESHA Survey PSA
May 14, 2002
Page 2
COASTAL RESOURCES MANAGEMENT
Marine &ologiml & YVetland Environmental Consulting Services
Mr. Patrick L Alford
City of Newport Beach Planning Department
P.O. Box 1768
Newport Beach, CA 926584915
April 2e, 2002
Re: Updates to the City of Newport Beach Local Coastal Plan and General Phan
Dear Mr. Alford:
Coastal Resources Management (CM is pleased to provide the City�ofNewport Beach
with our scope of work and cost proposal to assist in updating the City's Local Coastal
Program Land Use Plan..and its General Plan. Per your request, we have included the
changes you requested and have revised the costs accordingly. The folbwing scope of
work defines the tasks we will complete in order to provide you with the required updates
on Environmentally Sensitive Habitat Areas (ESHA) with the City's corporate limits,
sphere of influence, and the adjacent coastline. Coastal Resources Management will
utilize the services of Chambers Group, Inc. of Irvine, CA to assist in providing the City
with high qMk and profi:Mional products. Our total not -to- exceed cost estimate for thin
work is $67,684.00.
We look forward to assisting the City in this endeavor. Please give me a call if you have
any questions.
Sincerely,
r TAL URCES MANAGEMENT
Biek are
PrincipallMariue Biologist
attachment
9491489 -9426 • Fax 949/489 -8620 • crmrrw@eartlrlink.net
Office • 726 Calle Casha • San Clemente, CA 92673
Mailing • 638 Cpmino de [as Mares. Suite C -240. #627 • Sari Clemente. CA 92673
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Coastal Resources Management (CRM) and Chambers Group, Inc. propose to update the City of
Newport Beach Local Plan (LCP) and the City of Newport Beach General Plan. The purpose of
the project is to provide the City of Newport Beach with up-to -date and forward - looking
information regarding City of Newport Beach Environmentally Sensitive habitat Areas (ESHAs)
and enviromneatal policies and regulations related to the natural resources of the City of
Newport Beach. The overall scope of work and associated tasks are described below.
Task 1. Project Management Mr. Rick Ware, Principal of CRM will be the Project Director
and the City's liaison. Dr. Noel Davis will be the Project Manager for Chambers Group's tasks.
They will insure that tasks are completed in a satisfactory manner on time and within the
estimated budget. Cost Estimate: 84,200.00
Task 2. Review of Coastal Plan, General Plan and Existing Data. Task 2 will consist of a
review of the relevant sections of the existing Local Coastal Plan and General Plan. Relevant
new policies and regulations that have been enacted since the last updates of these plane will be
identified. In addition, existing biological data from sensitive habitats within the City of Newport
Beach will be collected and reviewed. Cost Estimate: $7,262.00
Task 3. GIS Data Review. Task 3 will consist of a review of the existing City of Newport
Beach GIS data and the preparation of aerial photographs for vegetation mapping and field
surveys. The project team will interact closely with the City's planning dent to insure that
all available information is reviewed and utilized. Cost Estimate: 52,700.00
Task 4. Field Studies. CRM and Chambers Group biologists will survey and describe each of
the existing ESHAs within the City of Newport Beach corporate limits, areas added to the City's
corporate limits since the last revisions were made (Newport Coast), Newport Beach's sphere of
influence, and adjacent coastline. Additional areas within the City's sphere of influence that will
be investigated will be Santa Ana Heights and Newport- Banning Ranch. This information will
also be used in the prepmation of the General Plan IBM and therefore, field studies will be
conducted at a level appropriate for CEQA analyses.
Using the existing naps, aerial photographs, existing literature, field observations, and any other
relevant information, biologists will ground truth natural habitats within the City of Newport
Beach and identify dominant groups of flora and fnma utilizing the habitats. Boundaries will be
mapped. Wildlife corridors and watercourses within the City and the City's sphere of influence
will be included in the surveys. The results of the scum will identify and describe each ESHA,
assess its condition, identify potential threats, and proposed methods of projection. The project
team will provide a listing of all ESHAs and prioritize the sensitivity of these habitats for
preservation As part of this task, Mr. Rick Ware and Dr. Davis will conduct rocky shoreline and
underwater surveys along the Newport Coast, recently annexed to the City , to identify marme
habitats that have a potential to be listed and included as City of Newport Beach ESHAL CRM
and Chambers Group, Inc. will also Cost Estimate: 522,000.00.
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Task S. Creation of GIS Layers for Local Coastal Plan and General Plan. Based on the
results of the field surveys and related data, CRM and Chambers Group will produce GIS data
layers and other graphics depicting Environmentally Sensitive Habitat Areas, watercourses,
other natural habitats within the City of Newport Beach. Chambers Group will interact closely
with the City's GIS persomtel to insure complete compatibility of GIS systems so that the
information can be easily incorporated into the Local Coastal Plan and other City documents.
Cost Estimate: S51458.00
Task 6. Draft Update of Biological Resource Elements of Local Coastal Plan and General
Plan. The project team will prepare an updated version of the "Envuonmenially Sensitive
Habitat Areas" and update all policies and other elements related to biological resources in the
Local Coastal Plan and the General Pian. Cost Estimate: $18,000.00
Task 7. Preparation of ]Final Update of Local Coastal Plan and General Plan. Commends
on the Draft Update will be responded to and the document will be revised to incorporate the
City's comments. Cost Estimate: $5,564.00
Task & Meetings. We utiderstand several coordination efforts between the City and
CRM/Chambers Group staff will be necessary to fully integrate the data that will be collected
and entered into the City's-GIS system, to coordinate report preparation and discuss draft reports,
and to insure that the City is fully informed of the project's progress. Mr. Ware and Dr. Davis,
and the Chambers Group Assistant Project Manager Don Mitchell will attend two, 2 -hour
meetings. Our GIS specialist, Jim Hall, will attend 1, 2 -hour meeting with City Stab Cost
Estimate: S2,W.00
CRM and Chambers Group will proceed with the project upon receiving a written authorization
to proceed. We understand that two timelines are involved in this process. The first deliverable
will be the completion of the ESHA areas within the Coastal Zone, since the City needs to
submit a complete application to the Coastal Commission on or before June 3tla, 2002. The
General Plan update will be completed as the second phase, and the information on ESHAs
outside the Coastal Zone will be completed by approAmately September /October 2002 so that
this information can be incorporated into the General Plan Update, scheduled to be completed in
early 2003.
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PROJECT COSTS
The total esthriated not -to -exceed cost for this work is $67,684. A sounmary of costs are
provided in Table 1 below. This cost assumes that project - related materials, maps, photographs,
and other relevant materials will be made available to CRM and Chambers (croup. Additional
costs for work conducted outside the identified Scope of Work will be charged to the City of
Newport Beach on a time and materials basis with the approval of the City of Newport Beach
Project Manager.
Table 1. Project Costa, by Task
TASK
COST
1.
Project Management
4,200
2.
Review of Existing LCP and Plan Data and Information
$7,262
3_
Review of GIS Database
$2,700
4.
Terrestrial and Marine habitat Studies
$22,000
5.
Creation of GIS Layer for Local Coastal Plan
$5,458
6.
Draft UDdate of Elements for the Local Coastal Plan and General Plan
$18,000
7.
Final Update of Elements for the Local Coastal Plan and General Pin
$52564
8.
Staff and City of Newport Beach Interactive M
$2,500
TOTAL ESTIMATED NOT -TO- EXCEED COST
$67,684
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, entered into this _th day of , 2002, by and
between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to
as "City "), and Coastal Resources Management whose address is 726 Calle Casita,
San Clemente, California, 92673, (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 field studies and prepare recommended updates to
the Local Coastal Program and General Plan policies relating to
environmentally sensitive habitat areas (hereinafter referred to as
"Project').
C. City desires to engage Consultant to conduct professional and technical
services for the Project upon the terms and conditions contained in this
Agreement.
D. The principal member of Consultant, are for purpose of this Project, Mr.
Rick Ware.
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 May, 2002 and
shall terminate on the 1St day of June, 2003, 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.
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 sixty-eight thousand dollars ($68,000.00).
The City Manager shall have the authority to authorize work beyond this amount, not to
exceed 25% of the contract amount.
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".
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 that 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 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.
4. STANDARD OF CARE
4.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the services required by this Agreement, and that it will
perform all services in a manner commensurate with the community professional
Professional Services Agreement
LCP /GP ESHA
Page 2
standards. 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 that may have jurisdiction or interest in
the work to be performed. City agrees to cooperate with the Consultant on the Project.
7. PROJECT MANAGER
. Consultant has designated Rick Ware 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.
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.
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Professional Services Agreement
LCP /GP ESHA
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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 ". 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 that 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 that 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.
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.
Professional Services Agreement
LCP /GP ESHA
Page 4
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 arising from any and all 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. This indemnity
shall apply even in the event of negligence of City, or its employees, or other
contractors, excepting only the sole negligence or willful misconduct of City, its officers
or employees, and shall include aftomeys' fees and all other costs incurred in defending
any such claim.
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
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.
Ik
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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
more of the voting power, or twenty-five percent (25 %) or more of the assets of the
corporation, partnership or joint- 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
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Professional Services Agreement
LCP /GP ESHA
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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. Patrick J.
Alford, Senior Planner shall be considered the Project Administrator and shall have the
authority 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.
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 l
Professional Services Agreement 1
LCP /GP ESHA
Page 7
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 K 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
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.
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
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Page 8
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: Patrick J. Alford, Senior Planner
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA, 92658 -8915
(949) 644 -3235 (Voice)
(949) 644 -3229 (Fax)
Palford @citv.newport- beach.ca.us (E -mail)
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Coastal Resources Management
ATTN: Rick Ware, Principal/Marine Biologist
638 Camino de los Mares, Suite C -240, #627
San Clemente, CA 92673
(949) 489 -9426 (Voice)
(949) 489 -8620 (Fax)
crmrrw@earthlink.net (E -mail)
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
and the steps necessary to cure such default, the nondefaulting 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.
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LCP /GP ESHA
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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.
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
Coastal Resources Management
Rick Ware, Principal
Professional Services Agreement
LCP /GP ESHA
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