HomeMy WebLinkAboutCC AG PKT 2008-08-25 #DAGENDA STAFF REPORT
DATE: August 25, 2008
TO: Honorable Mayor and City Council
THRU: David N. Carmany, City Manager
FROM: Patrick Importuna, Interim Assistant City Manager
BY: Andrew J. Tse, Personnel Manager
SUBJECT: AGREEMENT FOR GENERAL CONSULTING
SERVICES WITH PACIFIC RESEARCH &
STRATEGIES, INC.
SUMMARY OF REQUEST:
The purpose of this report is to request City Council approval of a professional
services agreement with Pacific Research & Strategies, Inc. for general
consulting services.
BACKGROUND:
East Beach loses sand periodically due to storms, typical wave action and
reflection of wave energy off the Anaheim Bay western jetty. As a result of sand
transport away from East Beach, the City continues to seek to replenish for its
eroded beach to resurrect declining beach use, provide improved protection to
public infrastructure, the pier, the public promenade and parking lots, and private
residences in the vicinity.
The East Beach Sand Nourishment Project is intended to replenish sand on the
shoreline between the pier and the Navy Property. Historically, the Army Corp of
Engineers performs a beach restoration project every 5 -7 years that replenishes
beaches from Surfside to Newport Beach. The US Army Corps of Engineers
(USAGE) is currently underway with the Stage 12 of this replenishment project.
Seal Beach, therefore, has the unique opportunity to "piggy-back" a nourishment
project for East Beach by working through the State of California and with
USAGE on the Stage 12 project.
Despite support from the USAGE South Pacific Division office and the State of
California, Seal Beach may not be able to piggyback on the Corps project
because of an interpretation of Federal regulation regarding additional work of
Agenda Item ~
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this type. Basically, the South Pacific Division office believes the regulations
allow fora "betterment" project of this type while USACE staff in Washington,
D.C. does not agree. If this "betterment" issue is not resolved by August 28th,
the City would then be left to pursue astand-alone project. That is, the City
would not be permitted to take advantage of Federal unit prices, contractor
mobilization, etc. A stand-alone project would involve a separate, extensive
environmental review, additional permitting, and contracting by "sole source" with
the USACE contractor. This would present the City with additional costs to
permit the work and assuredly higher costs to perform the nourishment. In the
end, it means the City will get less sand.
Components of the changed strategy could include: 1) to continue to work with
the USACE staff in Washington D.C. on a favorable interpretation of the
regulations, 2) to request (using a different lobbyist) that the project be funded
with a Federal "earmark" appropriation rather than city general fund dollars,
and/or 3) to request changed Federal authorization so Seal Beach is included in
the San Gabriel river-to-Newport federally funded project, ensuring that the
project is paid for by the U.S. Army Corps going forward. Both of these goals are
likely to take considerable time and energy to achieve.
FINANCIAL IMPACT:
The fiscal impact for this agreement will be cost neutral as Pacific Research &
Strategies, Inc. will be replacing the existing lobbyist firm.
RECOMMENDATION:
Staff recommends that the Council approve the attached agreement with Pacific
Research & Strategies, Inc. and direct staff to take all necessary steps to cancel .
the contract with the City's current lobbyist firm.
SUBMITTED~BY:
~~GZ~,'~-~' 'C
Patrick Impo a,
Interim Assistant City Manager
NOTED AND APPROVED:
fir!
David N. C rmany
City Manager
Attachments:
A. Resolution No. 5777
B. Professional Services Agreement
RESOLUTION NUMBER 5777
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING A PROFESSIONAL SERVICES AGREEMENT
WITH PACIFIC RESEARCH AND STRATEGIES, INC.
THE CITY COUNCIL OF THE CITY OF SEAL BEACH HEREBY RESOLVES AS
FOLLOWS:
SECTION 1. The City Council hereby approves a professional services
agreement with Pacific Research & Strategies, Inc. and authorizes the City
Manager to sign on behalf of the City of Seal Beach.
PASSED, APPROVED AND ADOPTED by the City Council of Seal Beach, at a
meeting hereof held on the 25th day of August , 2008 by the following vote:
AYES: COUNCILMEMBERS
NOES: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS
ABSTAIN: COUNCILMEMBERS
ATTEST:
Mayor
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of the City of Seal Beach, California, do hereby certify
that the foregoing resolution is the original copy of Resolution Number 5777 on
file in the office of the City Clerk, passed, approved, and adopted by the City
Council of the City of Seal Beach, at a regular meeting held on the 25th day
of Auoust , 2008.
City Clerk
AGREEMENT FOR
GENERAL CONSULTING SERVICES
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Pacific Research & Strategies, Inc.
6475 E. Pacific Coast Highway
Long Beach, California 90803
(562) 494-3800
This Service Agreement ("the Agreement") is made as of , 2008, by and
between Pacific Research & Strategies, Inc. ("Consultant"), a California corporation, and
the City of Seal Beach ("City', a California charter city, (collectively, "the Parties").
RECITALS
WHEREAS, City desires to have certain state and federal advocacy services with
respect to the City's beach sand nourishment program and, from time to time, other
matters; and
WHEREAS, Consultant represents that it is qualified and able to perform the
services required by City;
NOW THEREFORE, in consideration of the of the Parties' performance of the
promises, covenants, and conditions stated herein, the Parties hereto agree as follows:
AGREEMENT
1.0 Scooe of Services.
1.1. Consultant shall, in consultation with City, represent City before state and
federal elected and appointed officials, work with City to obtain funding, authorization,
or both for the City projects, and to develop strategies and documentation to promote the
City's interests and guide the City's state and federal efforts relative to accomplishing an
agreed upon advocacy agenda. Consultant shall assist City in obtaining meetings and
appointments with elected and appointed state and federal officials as necessary to
support City's efforts at the state and federal level.
1.2. Consultant shall, in consultation with City, engage in general and/or
miscellaneous advisory services such as keeping City advised of issues of significance to
City, advising City on the status of legislation relevant to City, and communicating with
appropriate state and federal elected and appointed officials on issues relevant to City.
1.3. Consultant shall submit to City a monthly narrative status report detailing
its efforts on behalf of the City and the results thereof during the previous month.
Consultant's duty to provide this monthly narrative status report is in addition to and
separate from its duty under Section 2.3 of this Agreement to submit an itemized billing
statement. Consultant shall submit the monthly narrative status report concurrently with
the itemized billing statement.
1.4. Except for expenses reimbursable pursuant to Section 2 of this Agreement,
Consultant shall assume all reasonable office and local travel expenses associated with
professional services provided pursuant to this Agreement. Miscellaneous or one-time
expenses that are agreed upon in advance by the City in writing will be reimbursed
separately only if City agrees to the same in advance and in writing.
1.5. Consultant shall perform all consulting services during the term of this
Agreement to the best of its ability and in a timely, thorough, and professional manner.
In rendering such services, Consultant shall abide by all applicable laws. Consultant
agrees to be available to the City when and as needed, for which availability Consultant
shall receive compensation as agreed upon and set forth in the section below.
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2.0 Payment
2.1. City shall pay Consultant a monthly fee of two thousand dollars ($2,000)
for its services.
2.2. In addition to paying the monthly fee, City shall reimburse Consultant for
its reasonable expenses for its services to the City; which reasonable expenses shall
include actual costs incurred for telephone, postage, and delivery.
2.3. Consultant shall submit an itemized statement to City for its services
performed each month which shall include documentation setting forth in detail a
description of the services rendered and the reimbursable expenses incurred. City shall
pay Consultant the amount of such billing within thirty (30) days of receipt of same. The
monthly statement shall describe the nature of the work performed, the employee
performing the work and the time spent for each task as well as the nature of any
reimbursable expenses incurred. Any expense over $50 shall include the appropriate
back-up documentation for that expense (i.e. invoice, receipt, etc.).
3.0 Independent Contractor.
City retains Consultant as an independent contractor and not as an employee. All
services provided pursuant to this Agreement shall be performed by Consultant or under
its personal supervision. Consultant will determine the means, methods, and details of
performing the services. Consultant shall secure at its own expense, any and all
personnel required to perform Consultant's services under this Agreement. Any
additional personnel performing services under this Agreement on behalf of Consultant
shall also not be employees of City and shall at all time 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 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.
4.0 Assisnment.
Consultant shall not assign or attempt to assign any portion of this Agreement
without the prior written approval of City.
5.0 Responsible Principal.
5.1. Rod Wilson shall be Consultant's Responsible Principal for purposes of
this Agreement and shall be principally responsible for Consultant's obligations under
this Agreement and serve as the principal liaison between City and Consultant.
Consultant will not designate another Responsible Principal without the City's prior
written authorization.
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5.2. The City Manager or the City Manager's designee shall be the City's
Responsible Principal for purposes of this Agreement and shall administer the terms of
the Agreement on the City's behalf.
6.0 Insurance.
6.1. Consultant shall at all times during the term of this Agreement carry,
maintain, and keep in full force and effect, a policy or policies of Comprehensive General
Liability Insurance, with minimum limits of One Million Dollars ($1,000,000) for each
occurrence, combined single limit, against any personal injury, death, loss or damage
resulting from the wrongful or negligent acts by Consultant.
6.2. Consultant agrees to maintain in force at all times during the performance
of work under this Agreement professional liability insurance with minimum limits of
One Million Dollars ($1,000,000).
6.3. Consultant agrees to maintain in force at all times during the performance
of work under this Agreement workers' compensation and employer's liability insurance
as required by law.
6.4. The policy or policies required by this Agreement shall be issued by an
insurer admitted in the State of California and with a rating of at least a B+;VII in the
latest edition of Best's Insurance Guide.
6.5. If Consultant does not keep the insurance policies required by this
Agreement in full force and effect, the City shall, within its sole discretion, have the
option to either immediately terminate this Agreement or, if insurance is available at a
reasonable cost, City may take out the necessary insurance and pay, at Consultant's
expense, the premium thereon.
6.6. At all times during the term of this Agreement, Consultant shall maintain
on file with the City Clerk a certificate or certificates of insurance on a form acceptable to
the City, showing that the policies required by this Agreement are in effect in the required
amounts. Consultant shall, prior to commencement of work under this Agreement, file
with the City Clerk such certificate or certificates.
6.7. Where available, the policies of insurance required by this Agreement
shall contain an endorsement naming the City as an additional insured. All of the policies
required under this Agreement shall contain an endorsement providing that the policies
cannot be canceled or reduced except on thirty (30) days prior written notice to City, and
specifically stating that the coverage contained in the policies affords insurance pursuant
to the terms and conditions as set forth in this Agreement.
6.8. Failure to submit any required evidence of insurance within the required
time period shall be cause for termination.
6.9. In the event Consultant does not maintain current, valid, evidence of
insurance on file with City, City ~ may, at its option, withhold payment of any moneys
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owed to Consultant, or which it subsequently owes to Consultant, until proper proof is
filed.
6.10. Consultant shall make the insurance policies required by this Agreement,
including all endorsements and riders, available to City for inspection at Consultant's
office during regular business hours.
6.11. The insurance provided by Consultant shall be primary to any coverage
available to City. Where available, the policies of insurance required by this Agreement
shall include provisions for waiver of subrogation.
6.12. Any deductibles or self-insured retentions must be declared to and
approved by City. At the option of City, Consultant shall either reduce or eliminate the
deductibles or self-insured retentions with respect to City, or Consultant shall procure a
bond guaranteeing payment of losses and expenses.
7.0 Indemnification.
Consultant shall defend, indemnify and hold the City, its officials, officers,
employees, volunteers and 'agents free and harmless from any and all claims, demands,
causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to
property or persons, including wrongful death, in any manner arising out of or incident to
any acts, omissions, or willful misconduct of Consultant, his employees, agents, arising
out of or in connection with the performance of this Agreement, including without
limitation the payment of all consequential damages and attorneys fees and other related
costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk,
any and all such aforesaid suits, actions or other legal proceedings of every kind that may
be brought or instituted against City, its directors, officials, officers, employees, agents or
volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be
rendered against City or its directors, officials, officers, employees, agents or volunteers,
in any such suit, action or other legal proceeding. Consultant shall reimburse City and its
directors, officials, officers, employees, agents, and/or volunteers, for any and all legal
expenses and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its directors, officials, officers,
employees, agents or volunteers. All duties of Consultant under this Section shall survive
termination of this Agreement.
8.0 Termination.
8.1. City may cancel this Agreement at any time without cause upon five (5)
days written notice to Consultant. Consultant agrees to cease all work under this
Agreement on or before the effective date of such notice. City may cancel this
Agreement immediately for cause.
• 8.2. In the event of termination or cancellation of this Agreement by City, due
to no fault or failure of performance by Consultant, Consultant shall be paid full
compensation for all services performed by Consultant, in an amount to be determined as
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follows: For work done in accordance with all of the terms and provisions of this
Agreement, Consultant shall be paid an amount equal to the amount of services
performed prior to the effective date of termination or cancellation; provided, in no event
shall the amount of money paid under the foregoing provisions of this paragraph exceed
the amount which would be paid Consultant for the full performance of the services
required by this Agreement.
9.0 City's Duty to Assist Consultant.
City shall provide Consultant with all pertinent data, documents, and other
requested information as is available for the proper performance of Consultant's services.
10.0 Information and Documents.
All data, information, documents and drawings prepared by Consultant for City or
required to be furnished to City in connection with this Agreement shall become the sole
property of the City, and City may use all or any portion of the work submitted by
Consultant pursuant to this Agreement as City deems appropriate.
11.0 Changes in the Scoue of Work.
The City shall have the right to order, in writing, changes in the scope of work or
the services to be performed. Any changes in the scope of work requested by Consultant
must be made in writing and approved by both parties.
12.0 Notice.
12.1. Any notice required to be given to Consultant shall be deemed duly and
properly given upon delivery, if sent to Consultant postage prepaid to the Consultant's
address set forth above or personally delivered to Consultant at such address or other
address specified to City in writing by Consultant.
12.2. Any notice required to be given to City shall be deemed duly and properly
given upon delivery, if sent to City postage prepaid to City's address set forth above or
personally delivered to City at such address or other address specified to Consultant in
writing by City.
13.0 Conflicts of Interest and Waivers. .
13.1. Consultant affirmatively represents that it, its officers, principals, and
employees presently have no interest and promises they shall not have any interest, direct
or indirect, that conflicts or would conflict in any manner with the performance of the
services contemplated by this Agreement. No person having any such interest shall be
employed by or be associated with Consultant. "Conflict" as used herein, shall be
defined and interpreted in accordance with California Government Code, Section 1090.
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13.2. Consultant agrees not to accept any employment during the term of this
Agreement by any other person or entity which employment is or may likely develop a
conflict of interest between City's interest and the interests of such other person or entity.
13.3. Consultant shall not work for any other client whose interests are adverse
to City's interests.
14.0 Attorney's Fees.
In the event of litigation between the parties arising out of or connected with this
Agreement, the prevailing party in such litigation shall be entitled to recover, in addition
to any other amounts, its actual attorneys' fees and costs of such litigation.
15.0 Files.
At the conclusion of the services required by Consultant and upon City's written
request, Consultant shall submit documents in Consultant's files for this matter to City.
If City does not request the file, Consultant will retain it for a period of at least seven (7)
years from the succession of services under this Agreement. If City does not request the
files within the seven year period, Consultant will have no further obligation to retain the
files and may, at its sole discretion, destroy the files without further notice to City.
16.0 Confidentiality.
The services and work product provided by Consultant pursuant to his Agreement
shall be maintained in confidence by Consultant, its agents, representatives, and
employees without restriction as to time, shall be disclosed only to the City, and shall not
be used for any purpose other than performance hereunder. Consultant shall not disclose
to others nor use for any purpose (other than Consultant's performance hereunder) any
information provided by or obtained from the City relating to its government and
business practices, including, but not limited to, studies, contacts and research performed
for this Agreement, business plans, forecasts and financial information.
17.0 Governing Law.
This Agreement shall be governed by the laws of the State of California.
18.0 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.
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IN WITNESS WHEREOF, the duly authorized representatives of each party have
executed this Agreement on the day and year first written. '
City of Seal Beach Pacific Research & Strategies, Inc.
By: By:
David Carmany, City Manager Wilson, President and CEO
Attest:
By:
Linda Devine, City Clerk
Approved as to.Fbrm:
By: ~
Quinn Barrow, City Attorney
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