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HomeMy WebLinkAboutItem LSEA( J� 9F • AGENDA STAFF REPORT DATE: September 12, 2016 TO: Honorable Mayor and City Council THRU: Jill R. Ingram, City Manager FROM: Jim Basham, Community Development Director SUBJECT: CITY COUNCIL AUTHORIZE THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH MICHAEL BAKER INTERNATIONAL FOR THE PREPARATION OF THE LOCAL COASTAL PROGRAM SUMMARY OF REQUEST: That the City Council adopt Resolution No. 6683 authorizing the City Manager to execute a Professional Services Agreement with Michael Baker International for the preparation of the Seal Beach Local Coastal Program. BACKGROUND AND ANALYSIS: The 1976 California Coastal Act requires that each city and county within the state's Coastal Zone prepare a Local Coastal Program (LCP). The LCP is defined by the Coastal Act as being the local government's land use plan, zoning ordinances and zoning districting maps designed to implement the policies and provisions of state coastal law. The City drafted Local Coastal Programs in 1983 and 2003, which were submitted to the California Coastal Commission (CCC) for review and subsequently returned to the City with several comments. In 2008, the City developed another draft aimed at incorporating the CCC's comments. The 2008 draft was never adopted and the City continues to rely on the CCC for review of Coastal Development Permits. The City aims to gain primary authority for the issuance of coastal development permits through the adoption of an approved Local Coastal Program. In 2013, staff issued a Request for Proposals (RFP) and completed a selection process in preparation for the development of a Local Coastal Plan, however, due to budget and staff constraints, the project did not move forward at that time. At this time, staff requests approval to move forward with the project given that the City was awarded a grant of $200,000 for the preparation of a Local Coastal Plan. The funding from the California Coastal Commission will allow a two year period for the City to work with Coastal Commission staff and conduct public outreach to prepare the LCP for certification. To ensure no time is lost, staff Agenda Item L would like to move forward with the consultant selected in the 2013 RFP process. A description of the RFP selection process is provided below and an updated scope of work has been included as Exhibit A to the attached Professional Services Agreement. On February 19, 2013, the City issued a RFP to six consultants, with experience working with the California Coastal Commission, to assist the City in developing and obtaining approval of a Local Coastal Program (LCP). On March 19, 2013, the proposal due date, two proposals were received in response to the RFP: Dongell Lawrence Finney LLP, a law firm, and PMC, a private consultant. Staff held interviews with both consultants on April 17, 2013. After extensive review of the proposals and consideration of both interviews, staff selected PMC to assist the City in completing the Local Coastal Program. While both proposals showed experience in working with the California Coastal Commission, PMC demonstrated experience and expertise in both working with the CCC and completing Local Coastal Programs and updates. The community outreach approach clearly shows the Seal Beach community will be involved throughout the creation of the LCP and PMC will be able to meet all deadlines. Since the initial selection, PMC was acquired by Michael Baker International. The Project Manager who prepared the proposal was retained and is available and prepared to move forward with this project. The City contacted Coastal Commission staff regarding consultant selection and the Coastal Commission staff has approved the City to move forward with the 2013 RFP selection process. The Coastal Commission grant process was focused on ensuring that all Coastal cities adopt a Local Coastal Plan that includes an analysis of Sea Level Rise. The City's grant application focused on development of a Local Coastal Plan, including a Coastal Implementation Plan that would allow the City to issue its own Coastal Development Permits, within a two year period. The Coastal Commission grant award included a condition that specified additional analysis of sea level rise would be required beyond what staff had initially proposed in the grant application. The grant amount of $200,000 was awarded by the Coastal Commission for consultant services to assist the City in preparing a Local Coastal Plan for certification. Grant funds will cover a majority of the cost of coordination with the Coastal Commission during the LCP process, conducting public outreach, assessing sea -level rise, preparing the LCP document, and obtaining final approvals and certification of the LCP. The grant application identified that the City will be required to spend up to $80,000 on the project to supplement costs for website maintenance, and other costs required to complete the LCP. The City budgeted $80,000, so the funds are available. The Coastal Commission grant award included a condition that required a more extensive analysis of sea level rise to be incorporated into the Local Coastal Plan. The consultant has identified that Moffat & Nichol will be utilized as a sub - consultant to prepare the sea -level rise analysis. The cost for the additional analysis has been incorporated into project budget and the total project cost will be $280,000. Page 2 ENVIRONMENTAL IMPACT: There is no environmental impact related to this item. LEGAL ANALYSIS: The City Attorney has reviewed and approved this item. FINANCIAL IMPACT: The City was awarded a grant of $200,000 from the California Coastal Commission which will be entirely utilized to pay for consultant services in preparation of the Local Coastal Plan. The City will contribute $80,000, to supplement the total project cost of $280,000. The funding for the LCP was included in the CIP budget. RECOMMENDATION: That the City Council adopt Resolution No. 6683, a Resolution of the Seal Beach City Council approving a Professional Services Agreement with Michael Baker International for preparation of the Local Coastal Program. SU NOTED AND APPROVED: JL-- c Vn �Iinpkham, Ji I . Ingram, City Ma a er Community Development Director Prepared by: Crystal Landavazo, Senior Planner Attachments: A. Resolution No. 6683 B. Professional Services Agreement with Michael Baker International. Page 3 Attachment "A" RESOLUTION NUMBER 6683 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH MICHAEL BAKER INTERNATIONAL FOR PREPARATION OF A LOCAL COASTAL PROGRAM THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE: Section 1. The City Council hereby approves the professional services agreement between the City of Seal Beach and Michael Baker International for preparation of a Local Coastal Program for the City of Seal Beach. Section 2. The Community Development Department issued a Request for Proposals from experienced consultants and completed a selection process to find the most qualified proposal. Section 3. The City of Seal Beach was awarded a grant of $200,000 from the California Coastal Commission to acquire the services of a consultant that would assist in preparation and certification of a Local Coastal Plan. Section 4. The Council hereby directs the City Manager to execute the Agreement. PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a regular meeting held on the 12th day of September, 2016 by the following vote: AYES: Council Membe NOES: Council Members ABSENT: Council ABSTAIN: Council Sandra Massa - Lavitt, Mayor ATTEST: Robin L. Roberts, City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Robin Roberts, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 6683 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 12th day of September, 2016. Robin L. Roberts, City Clerk Attachment 6644 PROFESSIONAL SERVICES AGREEMENT for Preparation of a Local Coastal Plan Between City of Seal Beach 211 8th Street Seal Beach, CA 90740 M Michael Baker International 60 Garden Court, Suite 230 Monterey, CA 93940 (831) 644 -9174 This Professional Service Agreement ( "the Agreement') is made as of September 12, 2016 (the "Effective Date "), by and between Michael Baker International ( "Consultant'), a California Company, and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). Page 1 of 22 Page 2 of 22 RECITALS A. City desires certain professional services. B. Pursuant to the authority provided by its City Charter and Government Code §37103, if applicable, and Resolution No. 6683, a Resolution of the Seal Beach City Council approving a Professional Services Agreement with Michael Baker International for preparation of a Local Coastal Plan. C. Consultant represents that it is qualified and able to provide City with such services. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. AGREEMENT 1.0 Scope of Services 1.1. Consultant shall provide those services ( "Services ") set forth in the attached Exhibit A. To the extent that there is any conflict between Exhibit A and this Agreement, this Agreement shall control. 1.2. Consultant shall perform all Services under this Agreement on a timely, regular basis and in a manner reasonably satisfactory to the City. 1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, State, and local law. 1.4. As a material inducement to City to enter into this Agreement, Consultant hereby represents that it has the experience necessary to undertake the Services to be provided. In light of such status and experience, Consultant hereby covenants that it shall follow the customary professional standards in performing all Services. 1.5. By executing this Agreement, Consultant represents that, to the extent required by the standard of practice, Consultant (a) has investigated and considered the scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) understands the facilities, difficulties and restrictions attending performance of the Services under this Agreement. Page 3 of 22 2.0 Term This term of this Agreement shall commence as of the Effective Date and shall continue for a term of two years and five months unless previously terminated as provided by this Agreement. 3.0 Consultant's Compensation City will pay Consultant in accordance with the fee schedule set forth in Exhibit A for Services but in no event will the City pay more than $280,000 for all Services performed. Consultant will not be compensated for any work performed not specified in the Scope of Services unless the City Manager authorizes such work in advance and in writing and such Services are authorized by Resolution No. 6683. Any such additional work authorized by the City pursuant to this Section will be compensated in accordance with the fee schedule set forth in Exhibit A. 4.0 Method of Payment 4.1. Consultant shall submit to City monthly invoices for all Services rendered pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end of the month during which the services were rendered and shall describe in detail the Services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the Services performed for each day in the period. City will pay Consultant any undisputed amounts within 30 days of receiving Consultant's invoice. City will not withhold any applicable federal or state payroll and other required taxes, or other authorized deductions from payments made to Consultant. 4.2. Upon 24 -hour notice from City, Consultant shall allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 4.2 shall survive for two years following the termination of this Agreement. 5.0 Termination 5.1. This Agreement may be terminated by City, without cause, or by Consultant based on reasonable cause, upon giving the other party written notice thereof not less than 30 days prior to the date of termination. 5.2. Notwithstanding Subsection 5.1, this Agreement may be terminated by City upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 30 days before the expiration date of the previous policy(ies). Page 4 of 22 5.3. Notice of termination shall be given in accordance with Section 7.0. 6.0 Party Representatives 6.1. The City Manager is the City's representative for purposes of this Agreement. 6.2. Tad Stearn is the Consultant's primary representative for purposes of this Agreement. It is expressly understood that the experience, knowledge, capability, and reputation of Tad Stearn were a substantial inducement for City to enter into this Agreement. Therefore, Tad Stearn shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. Consultant may not change its representative without the prior written approval of City, which approval shall not be unreasonably withheld. 7.0 Notices 7.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses: To City: City of Seal Beach 211 8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Michael Baker International 60 Garden Court, Suite 230 Monterey, CA 93940 Attn: Tad Stearn, Project Manager 7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 8.0 Personnel Consultant has or shall secure, at its own expense, all personnel required to perform the Services under this Agreement. Consultant and any person who performs Services shall possess the qualifications, permits, and licenses required by State and local law to perform such Services, including, without limitation, a City of Seal Beach business license as required by the Seal Beach Municipal Code. Page 5 of 22 9.0 Independent Contractor 9.1. Consultant is and shall at all times remain an independent contractor and not an employee of the City, and Consultant is not entitled to participate in any pension plan, insurance, bonus or similar benefits that City provides for its employees. All Services provided pursuant to this Agreement shall be performed by Consultant or under its exclusive supervision, direction and control. Consultant will determine the means, methods, and details of performing the Services. Consultant shall be solely responsible for the satisfactory work performance of all personnel engaged in performing the Services and compliance with the customary professional standards. 9.2. Any additional personnel performing Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be solely responsible for all reports and obligations respecting such additional personnel, including, but not limited to: Social Security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 9.3. Consultant shall defend (with legal counsel acceptable to City), indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's personnel practices or any act or omission related to or arising out of this Section 9. In addition to any other remedies under this Agreement or law, City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure or refusal to promptly pay to City any reimbursement or indemnification arising under this Section 9. Consultant's defense and indemnification obligations under this Section are in addition to Consultant's defense and indemnification obligations of Section 16. 10.0 Confidentiality; Publication of Documents 10.1. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential. Except as necessary for performance of the Services under this Agreement, no copies, sketches, photographs, or graphs of materials, prepared pursuant to this Agreement, and no data, documents or other 'information developed or received by Consultant in the performance of this Agreement shall be released by Consultant to any other person or public without City's prior written authorization. City shall grant such authorization if applicable law requires disclosure. All City data shall be returned Page 6 of 22 to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement. 10.2. All press releases and other information to be published in newspapers or magazines, will be approved and distributed solely by City, unless otherwise provided by written agreement between the Parties. Should Consultant receive any subpoena or other court order for production or disclosure of any records, Consultant shall immediately notify City and shall cooperate with City in responding to such subpoena or court order. 11.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. 12.0 Ownership of Documents and Work Product 12.1. All data, documents, plans, specifications, reports, information, data, exhibits, photographs, images, video files and media created or developed by Consultant pursuant to this Agreement ( "Written Products ") shall be and remain the property of City without restriction or limitation upon its use, duplication or dissemination by City. All Written Products shall be considered "works made for hire," and all Written Products and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of City without restriction or limitation upon their use, duplication or dissemination by City. Consultant shall not obtain or attempt to obtain copyright protection as to any Written Products. 12.2. Consultant hereby assigns to City all ownership and any and all intellectual property rights to the Written Products that are not otherwise vested in City pursuant to the paragraph directly above this one. 12.3. Consultant warrants and represents that it has secured all necessary licenses, consents or approvals to use any instrumentality, thing or component as to which any intellectual property right exists, including computer software, used in the rendering of the Services and the production of all Written Products produced under this Agreement, and that City has full legal title to and the right to reproduce the Written Products. Consultant shall defend, indemnify and hold City, and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of City officials, harmless from any loss, claim or liability in any way related to a claim that City's use of any of the Written Products is violating federal, state or local laws, or any contractual provisions, or any laws relating to trade names, licenses, franchises, copyrights, patents or other means of protecting intellectual Page 7 of 22 property rights and /or interests in products or inventions. Consultant shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the Services and Written Products produced under this Agreement. In the event the use of any of the Written Products or other deliverables hereunder by City is held to constitute an infringement and the use of any of the same is enjoined, Consultant, at its expense, shall: (1) secure for City the right to continue using the Written Products and other deliverables by suspension of any injunction, or by procuring a license or licenses for City; or (2) modify the Written Products and other deliverables so that they become non - infringing while remaining in compliance with the requirements of this Agreement. This covenant shall survive the termination of this Agreement. Consultant's defense and indemnification obligations under this Section 12.3 are in addition to Consultant's defense and indemnification obligations of Section 16. 12.4. Upon expiration or termination of the Agreement, Consultant shall deliver to City all Written Products and other deliverables related to any Services performed pursuant to this Agreement without additional cost or expense to City. If Consultant prepares a document on a computer, Consultant shall provide City with said document both in a printed format and in an electronic format that is acceptable to City. 13.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 14.0 Inspection and Audit of Records Consultant shall maintain complete and accurate records with respect to all Services and other matters covered under this Agreement, including but expressly not limited to, all Services performed, salaries, wages, costs, expenses and receipts. Consultant shall maintain adequate records on the Services provided in sufficient detail to permit an evaluation of all Services and work in connection therewith. All such records shall be clearly identified and readily accessible. At all times during regular business hours, Consultant shall provide City with free access to such records, and the right to examine and audit the same and to make transcripts as City deems necessary, and shall allow inspection of all program data, information, documents, proceedings and activities and all other matters related to the performance of the Services under this Agreement. Consultant shall retain all financial and program service records and all other records related to the Services and performance of this Agreement for at least three (3) years after expiration, termination or final payment under this Agreement, whichever occurs later. City's rights under this Section 14.0 shall survive for three years after expiration, termination or final payment under this Agreement, whichever occurs later. Page 8 of 22 15.0 Insurance 15.1 Liability Insurance. Consultant shall procure and maintain in full force and effect for the duration of this Agreement insurance against claims for injuries to persons or damages to property and professional negligence which may arise from or in connection with the performance of the Services hereunder by Consultant, and its agents, representatives, employees and subcontractors. 15.2. Minimum Scope of Insurance. Unless otherwise approved by City, coverage shall be at least as broad as: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). Workers' Compensation insurance as required by the State of California; and Employer's Liability Insurance. Professional Liability insurance. Consultant shall provide to City the standard form issued by the carrier. 15.3. Minimum Limits of Insurance. Consultant shall maintain limits no less than: General Liability: $2,000,000 per occurrence and in the aggregate for bodily injury and death, personal injury and property damage. Commercial General Liability Insurance or other form with a general aggregate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Employer's Liability: $1,000,000 per accident and in the aggregate for bodily injury or disease; and Workers' Compensation Insurance in the amount required by law. Professional Liability: $1,000,000 per claim /aggregate. 15.4. Deductibles and Self- Insured Retentions. Consultant shall inform City of any deductibles or self- insured retentions except with respect to professional liability insurance. Page 9 of 22 15.5. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 15.5.1. City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of City officials, are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no limitations on the scope of protection afforded to City, its officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of City officials which are not also limitations applicable to the named insured. 15.5.2. For any claims related to this Agreement, Consultant's insurance coverage shall be primary insurance as respects City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of City officials. Any insurance or self - insurance maintained by City, its officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of City officials shall be excess of Consultant's insurance and shall not contribute with it. 15.5.3. Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 15.5.4. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled or materially modified except after 30 days' prior written notice by first class mail has been given to City, or 10 days' prior written notice by express overnight mail if cancellation is due to nonpayment of premiums. 15.5.5. Each insurance policy, except for the professional liability policy, shall expressly waive the insurer's right of subrogation against City and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of City officials. 15.5.6. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VIII unless waived in writing by City's Risk Manager. 15.5.7. Verification of Coverage. All insurance coverages shall be confirmed by execution of endorsements on forms approved by City. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved Page 10 of 22 by City before services commence. As an alternative to City forms, Consultant's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. 16.0 Indemnification, Hold Harmless, and Duty to Defend 16.1 Indemnity for Design Professional Services. In connection with its design professional services, and to the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City, and its elected and appointed officials, officers, employees, servants, designated volunteers, and those City agents and independent contractors serving in the role of City officials (collectively, "Indemnitees "), from any and all claims, demands, damages, causes of action, proceedings, judgments, injuries, liabilities, losses, penalties, liens, costs or expenses, in law or in equity, of any nature whatsoever, including without limitation the payment of all consequential damages, and reimbursement of, expert costs, attorneys' fees and other costs and expenses, to property or persons, (collectively, "Design Professional Claims" hereinafter), including but not limited to Design Professional Claims relating to personal injury, bodily injury, death or property damage, whether actual, alleged or threatened, which arise out of, pertain to, or relate to in whole or in part to the negligence, recklessness, or willful misconduct of Consultant or any of its directors, officers, employees, subcontractors, servants or agents (or any entity or individual for whom Consultant shall bear the legal liability) in connection with the performance of design professional services under this Agreement by a design professional as defined under California Civil Code § 2782.8(c)(2). With respect to any and all such aforesaid suits, actions, or other legal, equitable or administrative proceedings or suits of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees (with legal counsel approved by the City, whose approval shall not be unreasonably withheld), at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse the City and the other Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. 16.2. Indemnity for Other Professional Services. In connection with Consultant's professional services other than design professional services (as provided in Subsection 16.1), and to the fullest extent permitted by law, Consultant shall defend at its sole cost and expense, hold harmless and indemnify the City Indemnitees (as defined in Subsection 16.1) from any and all claims, demands, damages, causes of action, proceedings, judgments, injuries, liabilities, losses, penalties, liens, costs or expenses, in law or in equity, of any nature whatsoever, including without limitation the payment of all consequential damages and expert and attorneys' fees and costs of defense and other costs and expenses (collectively, "Other Professional Claims" hereinafter) including but not limited to, the payment of all consequential damages, expert costs, and Page 11 of 22 attorneys' fees and other costs and expenses, including but not limited to Other Professional Claims relating to personal injury, bodily injury, death or property damage, whether actual, alleged or threatened, which arise out of, pertain to, or relate to in whole or in part the negligent or willful acts or omissions of Consultant or any of its directors, officers, employees, subcontractors, servants or agents (or any entity or individual for whom or that Consultant shall bear the legal liability) in connection with the performance of such other professional services under this Agreement, except to the extent such loss or damage arises from the sole negligence or willful misconduct of the City, as determined by final arbitration or court decision or by the agreement of the Parties. With respect to all such aforesaid suits, actions, or other legal, equitable or administrative proceedings or suits of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees (with legal counsel approved by City, whose approval shall not be unreasonably withheld), at Consultant's own cost, expense and risk, and shall pay and satisfy any judgment, award or decree that may be rendered against Indemnitees. Consultant shall reimburse the City and the other Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. 16.3. Indemnification for Other Than Professional Liability. Other than in the performance of professional services (as provided in Subsections 16.1 and 16.2) and to the fullest extent permitted by law, Consultant shall, at its own cost and expense, defend, hold harmless and indemnify the City Indemnitees (as defined in Subsection 16.1) from any and all claims, demands, damages, causes of action, proceedings, judgments, injuries, liabilities, losses, penalties, costs, or expenses, in law or equity, of any nature whatsoever (collectively, "Other Claims" hereinafter), including but not limited to the payment of all consequential damages, expert costs, and attorneys' fees and other costs and expenses, including but not limited to Other Claims relating to personal injury, bodily injury, death, or property damage, in any manner arising out of or related to, in whole or in part, the acts or omissions of Consultant, its officers, directors, employees, agents, or servants (or any entity or individual that Consultant shall bear the legal liability) in connection with the performance of this Agreement, including the Indemnitees' active or passive negligence, except to the extent such loss or damage arises from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and the other Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. 16.4. Consultant's defense and indemnification obligations under this Section 16.0 or any other provisions of this Agreement shall not be restricted to Page 12 of 22 insurance proceeds, if any, received by Consultant, the City or any of the other Indemnitees as defined in this Section. 16.5. All duties and other covenants of Consultant under this Section 16.0 shall survive termination of this Agreement. 17.0 Conflict of Interest 17.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code §§ 1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 17.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift. 17.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited `conflict of interest' under applicable laws as described in this Subsection. 18.0 Equal Opportunity Consultant affirmatively represents that it is an equal opportunity employer. Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, Page 13 of 22 handicap, ancestry, sex, sexual orientation, or age. Such non- discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 19.0 Labor Certification 19.1 By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 19.2 To the extent that any of the Services to be performed under this Agreement constitute a public work to which prevailing wages apply, Consultant agrees to comply with the provisions of California Labor Code Sections 1771, 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. Consultant shall, as a penalty to City, forfeit not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for any public work done under the contract by Consultant or by any subcontractor. 20.0 Permits and Licenses Consultant, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certificates as may be required in connection with the performance of Services under this Agreement. 21.0 Time of the Essence Time is of the essence in respect to all provisions of this Agreement that specify a time for performance. 22.0 Entire Agreement This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior oral or written negotiations, representations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties. Page 14 of 22 23.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 24.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflict of law principles, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. Any dispute that arises under or relates to this Agreement, shall be resolved in the superior court or federal court with geographic jurisdiction over the City. 25.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 26.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 27.0 Attorneys' Fees If a Party commences any legal, administrative or other action against the other Party arising out of or in connection with this Agreement, the prevailing Party in such action shall be entitled to have and recover from the losing Party all of its attorneys' fees and other costs incurred in connection therewith. 28.0 Exhibits All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 29.0 Corporate Authority The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by their execution, the Parties are formally bound to the provision of this Agreement. Page 15 of 22 IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH LIM Attest: In Jill R. Ingram, City Manager Robin L. Roberts, City Clerk Approved as to Form: EM Craig A. Steele, City Attorney Michael Baker International By: Name: Its: By: Name: Its: Page 16 of 22 EXHIBIT A WORK PROGRAM AND SCHEDULE (REVISED 8- 30 -16) The following Work Program has been revised in response to the Coastal Commission's Award Conditions. A. TASKS 1. Task 1 — Project Kick -Off and Define Scope — The City's project team is expected to meet with the consultant to refine the scope of work and confirm the project timeline. The consultant will be provided with a clear approach to development and intended goals for the development of the Local Coastal Plan. City staff will coordinate with the consultant to identify the parameters of any new analysis and objectives for development and resource conservation. The consultant will be expected to review and organize all existing technical studies, prior LCP drafts, pending projects, and all relevant planning and policy documents that will be provided by the City. i. Sub -Task 1.1 — Kick -Off Meeting & Consultant Field VisitfTour ii. Sub -Task 1.2 — Technical Analysis and Outreach Plan iii. Sub -Task 1.3 — Collect & Review City Data iv. Deliverables: Final Scope of Work 2. Task 2 — Early Consultation with Coastal Commission Staff —Soon after the initial kick -off meeting, the consultant will set up one or two meetings with Coastal Commission staff to discuss the scope and effort of the Seal Beach Local Coastal Plan. The meeting will focus on identifying primary coastal resources, specific planning issues, document format, and other issues essential to begin development of the Seal Beach Local Coastal Plan. The goal of these meetings will be to address past comments and concerns from prior draft LCPs and reach an agreement between City staff and Coastal Commission staff on the current scope, goals, and expectations of the LCP. Additional meetings with Coastal Staff will be an optional task that the City will budget for, outside of the grant funds, to ensure that communication is maintained and all concerns can be addressed throughout the LCP development process. i. Task 2.1 — Prepare an agenda identifying past comments and current goals ii. Task 2.2 — Meetings with Coastal Commission Staff iii. Deliverables: Meeting Summary and Recommendations 3. Task 3 — Community Outreach Program — The City intends to involve the public throughout the Local Coastal Plan development process to ensure that the community is supportive of the final document. City staff will meet with the consultant to discuss past outreach efforts, key stakeholders, and goals for the project. The meeting is intended to identify the depth of strategy and outreach Page 17 of 22 options that will be implemented throughout the project schedule. Several community participation strategies are anticipated throughout the project, these will likely include a mix of stakeholder interviews, community workshops, media outreach, emails, and a project webpage on the City's website. i. Task 3.1 — Develop Outreach Plan ii. Task 3.2 — Stakeholder Interviews iii. Task 3.3 — Community Workshops and emails iv. Task 3.4 — Planning Commission Study Sessions (2) v. Task 3.5 — City Council Study Sessions (2) vi. Deliverables: Project Website, Email Contact List, Public Comment Summary 4. Task 4 — Sea Level Rise Assessment — The consultant will be tasked with using the best available science on sea level rise, such as the State of California Adaptation Planning Guide, California Energy Commission Cal -Adapt Web Portal, and Pacific Institute Sea Level Rise GIS layers, along with the Commission's Sea Level Rise Guidance document to complete an analysis of potential seal -level rise risk in the coastal zone. The following work approach is based on the guidelines provided in Chapter 5 of the California Coastal Commission Sea Level Rise Policy Guidance, adopted August 12, 2015. The basic steps of the sea level rise assessment are summarized below and include 1) identify and map sea level rise hazards, 2) assess the vulnerability of development and resources in the coastal zone, and 3) develop adaptation policies and programs to minimize the adverse impacts associated with sea level rise. Sea Level Rise Hazard Analysis. The City has a history of coastal flooding when large storm waves coincide with high water levels, and sea level rise is expected to increase the frequency and severity of these types of events. Coastal hazards during storm conditions and non -storm conditions will be evaluated for three sea level rise scenarios of 50 cm (1.6 feet), 100 cm (3.3 feet) and 150 cm (4.9 feet). These three scenarios cover most of the sea level rise projections out to 2100 and provide a basis for understanding how hazards and vulnerabilities change with each increment of sea level rise. The results of the coastal hazards analysis will be compiled and mapped within the ArcGIS platform for each scenario. The following sea level rise related coastal hazards will be evaluated in the LCP. • Coastal storm related flooding will be evaluated using results from the Coastal Storm Modeling System (CoSMoS) 3.0 published by USGS. Page 18 of 22 • Verify potential connections to the adjacent water bodies of Anaheim Bay and the San Gabriel River to ascertain whether CoSMoS predictions are correct for certain areas. Nearshore wave transformation profiles will be developed to evaluate the Seal Beach Municipal Pier's exposure to sea level rise. • Non -storm related flooding will be evaluated by comparing high water levels, such as a "king tide" event with existing topography in the City. • Beach width changes due to sea level rise will be evaluated using an empirical method such as the modified Bruun rule. • The effectiveness of sediment management activities such as winter dike building, sand backpassing, and beach nourishment will be evaluated using empirical methods for wave runup and overtopping. Vulnerability Assessment. The coastal hazard maps prepared for each sea level rise scenario will be compared with the City's resource database to evaluate potential sea level rise impacts on infrastructure, development and coastal resources in the LCP planning area. The resource database will be compiled using available information from the City's inventory of parcels, critical infrastructure, assets and coastal resources. The vulnerability assessment approach will be consistent with the Coastal Commission's Sea Level Rise Policy Guidance. The vulnerability of an asset or resource will depend on factors such as exposure to sea level rise hazards, sensitivity to hazards and adaptive capacity. Results of the vulnerability assessment will inform preparation of the LCP by identifying "impact thresholds" at which significant planning areas, assets or coastal resources could be impacted by sea level rise. The consequence of the identified impacts will also inform the policies and programs of the LCP to minimize risk to important infrastructure, basic services and valuable resources. The vulnerabilities and the consequences identified in this assessment will help prioritize planning efforts to account for the urgency (time horizon) of each impact, and the importance of each impact on the community and resources. Adaptation Measures. Once the vulnerabilities and consequences have been identified and prioritized, a list of adaptation strategies will be developed to minimize impacts on assets and resources from sea level rise related hazards. Adaptation strategies will include planning level measures, policy level measures and also specific project measures in an effort to improve resilience to sea level rise hazards. Both near -term and long -term strategies will be developed to build adaptive capacity into the City's important assets and resources. Planning level efforts may include sea level rise hazard overlay maps, public outreach and education. Policy level measures may include land use or zoning regulations aimed at minimizing risk to existing and future development. Project level measures will consider strategies such as accommodation, protection and retreat and evaluate the effectiveness of Page 19 of 22 sediment management measures such as beach nourishment, sand backpassing and winter dike building. The adaptation measures will provide a starting point for drafting policies and programs of the LCP. i. Task 4.1 — Sea Level Rise Hazard Analysis ii. Task 4.2 —Vulnerability Assessment iii. Task 4.3 — Adaptation Measures iv. Deliverables: Sea Level Rise Hazard Analysis, Vulnerability Assessment, and Draft Adaptation Measures 5. Task 5 — Prepare Seal Beach LCP Drafts and Maps — The consultant will be tasked with reviewing and organizing all relevant data collected from the initial kick -off meeting with staff, early consultation with Coastal Commission Staff, the sea -level rise assessment, public outreach and consultation with City staff. The consultant must complete a complete update of the City's prior draft LCP in order to focus on the City's goals of focusing on redevelopment opportunities, providing adequate public services, providing better connections between the beach areas and the downtown, accommodating coastal access, and enhancing bicycle and pedestrian circulation. The draft LCP will initially require the development of a policy framework that involves a programmatic inventory of biological and wetland resources using graphics, tables, and matrices. The policy framework will be provided to Coastal Commission staff for review and approval before moving forward with the draft LCP. Additionally, the consultant will prepare GIS base maps of the Coastal area to show land uses and resources within the coastal zone. The LCP document will reflect and incorporate recommendations from current Coastal Commission guidance documents. The consultant team will research and incorporate best practice approaches to key LCP issues and policy, including lower cost visitor serving accommodations, visitor serving and coastal dependent land uses, public access, beach use and special events, and other subjects as locally appropriate. A Coastal Implementation Plan will be prepared as part of the draft LCP for review and incorporation into the Final LCP. Comments from a prior draft LCP indicated all development regulations from existing Specific Plans within the coastal zone must be specifically incorporated into the implementation plan, not by reference. The consultant will ensure that these regulations are incorporated so the LCP can be certified as a stand -alone document. Additionally, the Implementation Plan will establish a Coastal Development Permit Ordinance that identifies policies and procedures for processing coastal development permits at the local level following certification of the LCP. i. Task 5.1 — Review and Organize all data and summary reports ii. Task 5.2 — Meet with City staff to discuss approach and framework iii. Task 5.3 — Submit framework to Coastal Commission for review Page 20 of 22 iv. Task 5.4 — Prepare GIS Base maps v. Task 5.5 — Incorporate Specific Plans into draft LCP vi. Task 5.6 — Develop Coastal Implementation Plan vii. Deliverables: Policy Framework, GIS Base maps, Draft Coastal Implementation Plan, Draft LCP 6. Task 6 — Prepare Final LCP — The consultant is expected to prepare a Final Local Coastal Plan that is reflective of any changes that resulted from the public hearing and local adoption process. The Final LCP document will be submitted to the Coastal Commission for processing and certification. i. Task 6.1 — Provide summary of public comment and required changes ii. Task 6.2 — Incorporate changes and prepare Final LCP iii. Deliverables: Public Comment Summary, Final LCP 7. Task 7 — Submit LCP to Coastal Commission — The consultant will be tasked with preparing the Final LCP for submittal to the Coastal Commission for review and certification. The consultant will prepare an application to be accompanied by a summary of measures taken to consult and coordinate with contiguous agencies, listing of participants appearing at meetings hearings, copies or summaries of significant copies received, all final documents and maps, a methodology demonstrating Coastal Act conformity, all environmental review documents, and a general indication of zoning measures and implementation. The City is prepared to meet with Coastal Commission staff at any time during the preparation and review of the LCP. i. Task 7.1 — Prepare Coastal Commission Application ii. Task 7.2 — Prepare and compile all requirements of Coastal Act Section 13519 iii. Deliverables: Coastal Commission LCP Application Package 8. Task 8 — Coastal Commission Hearings — The consultant is expected to assist the City throughout the review and certification process. The consultant will attend Coastal Commission hearings with staff in order to facilitate any questions raised by the Commission. Additionally, the consultant is expected to attend internal staff meetings and local public hearings before the Planning Commission and City Council. i. Task 8.1 —Attend local hearings ii. Task 8.2 — Attend Coastal Commission hearings iii. Task 8.3 — Modify LCP text as needed iv. Deliverables: Materials to support staff during hearings, Certified LCP Page 21 of 22 Seal Beach Local Coastal Program Michael Baker International Consultant Team Consultant Team Budget Summary The following budget generally corresponds to the City's Application Budget Information table to demonstrate cost allocation through project completion. The tasks reflect tasks in the updated Work Program. Page 22 of 22 Consultant Consultant Consultant Task Task Cost Cost Cost Allocation — Number Allocation — Allocation — Moffatt & Total Michael Baker Nichol 1 Project Kick Off and $ 8,000 $ 7,000 $1,000 Coordination 2 Coordination with $ 5,000 $ 4,000 $1,000 CCC 3 Community Outreach $ 48,000 $ 40,000 $ 8,000 Program Sea Level Rise and 4 Vulnerability $ 80,000 $ 10,000 $70,000 Assessment 5 LCP Draft and Mapping $ 70,000 $ 70,000 6 Prepare Final LCP $ 15,000 $ 15,000 7 Submit LCP Application $ 10,000 $ 10,000 Package to CCC 8 $ 18,000 $ 18,000 Hearings /Meetings OTHER DIRECT COSTS $ 6,000 $ 6,000 TOTAL $260,000 $180,000 $80,000 Page 22 of 22