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RPVCCA_CC_SR_2015_06_02_M_View_Rest_BergCITY OF RANCHO PALOS VERDES MEMORANDUM TO: HONORABLE MAYOR & CITY COUNCIL MEMBERS FROM: JOEL ROJAS, COMMUNITY DEVELOPIRECTOR DATE: JUNE 2, 2015 SUBJECT: CONTRACT RENEWAL FOR VIEW RESTORATION MEDIATOR SERVICES REVIEWED: DOUG WILLMORE, CITY MANAGER OAA -11 Project Manager: John Alvarez, Senior Planner RECOMMENDATION Authorize the Mayor and City Clerk to execute a two-year extension of the existing professional service agreement with the City's View Restoration Mediator, Ms. Coleen Berg, to continue to provide mediation services on an as -needed basis to the City until June 30, 2017. BACKGROUND Implementation of the City's View Restoration and Preservation Ordinance involves the use of professional consultants to provide expert and professional assistance to the City. During the pre -application phase of the City's View Restoration process, mediation services are conducted by the City's View Restoration Mediator, Ms. Berg. The City's professional services contract with Ms. Berg is set to expire on June 30, 2015. In order to continue to retain Ms. Berg's mediation services, Staff is proposing to extend the City's contract with Ms. Berg to a two (2) year term. DISCUSSION The pre -application process for View Restoration Permits requires the City to attempt to mediate view impairment issues with the applicant and the tree owner. Since the inception of the mediation of services with Ms. Berg in 2004, the City and its residents have benefited from Ms. Berg's exceptional ability to resolve view impairment disputes. Largely as a result of Ms. Berg's success rate, very few View Restoration Permit applications are brought to the City's Planning Commission and City Council for resolution. As an example, the last View Restoration Permit application case that advanced to either the Planning Commission and/or City Council because of unsuccessful mediation between the parties occurred in 2012. During a typical 5 -year period, the City receives an average of 15 view restoration cases per year, most which were privately resolved using Ms. Berg's mediation services. The other cases are either not mediated because the tree owner chooses not to attend mediation or the tree owner voluntarily trimmed his/her view impairing trees before mediation occurs. 1 View Restoration Mediator Contract Renewal June 2, 2015 Page 2 In June 2013, the City Council renewed the existing two (2) year contract with Ms. Berg for an amount not to exceed $40,000 annually. Since then, the City has received 25 requests for mediation, yet thus far, none have been advanced, as formal View Restoration Permit applications to the Planning Commission. The City in recent months has recognized that there could be a need to expand mediation services beyond that of View Restoration Permit applications. Given Ms. Berg's experience in resolving neighbor -to -neighbor disputes, Staff recommends that the City Council renew the mediator contract that includes the proposed language in the contract's scope of work (Article 1.1) allowing the City to expand the scope of mediation services to include other assignments on an as needed basis. Such mediation assignments would include, but are not limited to, mediating fence, wall, and hedge issues. As part of the proposed contract renewal, Ms. Berg welcomes any new mediation assignments the City could offer to her. Within the next two years, Staff anticipates a steady number of pre -application View Restoration Permit cases that would be covered by the existing contract amount of $40,000 per year. This contract amount is expected to be sufficient to cover the anticipated consulting costs associated with other mediation assignments. A revised two (2) year service contract (attached) has been prepared by Staff and reviewed and approved by the City Attorney and Ms. Berg. CONCLUSION At this time, Staff requests that the City Council continue to use the professional services of the View Restoration Mediator, Ms. Berg, by renewing the professional services agreement, with the expanded scope of work, for a (two) 2 year period to June 30, 2017, with a monetary cap of $40,000 annually. FISCAL IMPACT Approval of the renewed service contract with Ms. Berg will not require a budget adjustment as the costs are proposed to be included in the View Restoration Division's budget. The $40,000 annual costs for mediation services will come from the General Fund and are not funded by any application fees. ALTERNATIVES The following are alternatives to Staff's recommended action: 1) Request Staff to solicit bids for professional mediation services or; 2) Identify any issues of concern that may require further study and direct Staff to provide additional information at a subsequent meeting, or 3) Authorize the Mayor and City Clerk to execute a contract for more or less than the June 30, 2017 contract expiration date. Attachments Proposed professional services contract (Page 3) 2 THIS AGREEMENT ("Agreement") is made and entered into this 2nd day of June, 2015 by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY") and Ms. Coleen Berg (hereafter referred to as "CONSULTANT"). RECITALS WHEREAS, CITY desires to engage a consultant in the field of dispute resolution to provide professional mediation services as described in this Agreement; and WHEREAS, CITY's Local View Restoration Guidelines and Procedures require early neighbor consultation meetings prior to the acceptance of any View Restoration Application Permit, as specified further in the Rancho Palos Verdes Municipal Code; and WHEREAS, CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein and in a format consistent with CITY's Local View Restoration Guidelines and Procedures. IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto agree as follows: ARTICLE 1 SCOPE OF SERVICES 1.1 Project Description The Project is described as follows: View Preservation and Restoration Mediation Consulting Services and other mediation services requested by the CITY. 1.2 Description of Services Subject to the terms and conditions set forth in this Agreement, CONSULTANT shall provide professional mediation services in connection with the administration of CITY's View Preservation and Restoration Ordinance. The professional mediation services to be performed by CONSULTANT shall include, but are not limited to, the services more particularly described below: (a) When requested by CITY, CONSULTANT shall attend and participate in pre -application meetings with potential applicants and affected neighbors pursuant to the procedures outlined in the CITY's Local View Restoration Guidelines and Procedures. (b) When requested, CONSULTANT shall provide CITY with: private agreements and any related photographs regarding mediation services; and written reports or Page 1 of 9 R6876-0001\1 58423lv2.doc 9 statements explaining why a particular mediation meeting failed. 1.3 Schedule of Work Upon request by the CITY, CONSULTANT shall perform with due diligence and in reasonable time the services requested by the CITY. Time is of the essence in this Agreement. 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, other consultants/contractors, or governmental agencies, or any other delays beyond CONSULTANT's control or without CONSULTANT's fault. ARTICLE 2 COMPENSATION 2.1 Fee CITY agrees to compensate CONSULTANT at a fixed rate of one hundred and twenty five dollars ($125) per hour ("Hourly Rate"), which includes all labor and costs, and in any case an amount not to exceed forty thousand dollars ($40,000) annually for the services described in Article 1. The Hourly Rate shall be in effect through the end of this Agreement. 2.2 Payment Address All payments due CONSULTANT shall be paid to: Ms. Coleen Berg Choice Mediation 4703 Merrill Street Torrance, CA 90503 2.3 Terms of Compensation CONSULTANT shall submit monthly invoices for the work and number of work hours completed in the previous month. CITY agrees to authorize payment for all undisputed invoice amounts within thirty (30) days of receipt of each invoice. CITY agrees to use its best efforts to notify CONSULTANT of any disputed invoice amounts within ten (10) days of the receipt of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed amount shall not be deemed a waiver of CITY's right to challenge such amount. Additionally, in the event CITY fails to pay any undisputed amounts due CONSULTANT within forty-five (45) days after invoices are received by CITY, then CITY agrees that CONSULTANT shall have the right to consider said default a total breach of this Agreement and be terminated by CONSULTANT without liability to CONSULTANT upon ten (10) working days advance written notice to CITY. Page 2 of 9 R6876-0001 \1584231 v2.doc El 2.4 Additional Services CITY may request additional specified work under this Agreement. All such work must be authorized in writing by the CITY's Director of Community Development prior to commencement. CONSULTANT shall perform such services, and CITY shall pay for such additional services at the Hourly Rate. 2.5 Term of Agreement This Agreement shall commence on July 1, 2015 and shall terminate on June 30, 2017, unless sooner terminated pursuant to Article 4 of this Agreement. ARTICLE 3 INDEMNIFICATION AND INSURANCE 3.1 Indemnification To the maximum extent permitted by law, CONSULTANT shall defend, indemnify, and hold the CITY, its officials, officers, employees, agents and independent contractors serving in the role of CITY officials, and volunteers (collectively "Indemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or equity, to property or persons, including wrongful death (collectively "Claims"), in any manner arising out of or incident to any acts or omissions of CONSULTANT, its officials, officers, employees or agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages, attorneys' fees, and other related costs and expenses, except for such Claims arising out of the sole negligence or willful misconduct of the Indemnitees. With respect to any and all such Claims, 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 Indemnitees 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 CONSULTANT or Indemnitees. All duties of CONSULTANT under this Section shall survive termination of this Agreement. 3.2 Insurance Not less than one day prior to commencing performance under this Agreement, CONSULTANT shall submit to CITY certificates evidencing compliance with the following minimum insurance requirements, and the fully policies which include these requirements, which compliance shall be maintained during the full term of this Agreement: (a) General liability insurance protecting CONSULTANT in an amount not less than $100,000 per occurrence, and $300,000 in the aggregate, for bodily injury, personal injury, loss and property damage for any activities undertaken by CONSULTANT or her Page 3 of 9 R6876-0001 \1584231 v2.doc 5 employees in the performance of this Agreement, automobile liability insurance protecting CONSULTANT and her employees in the minimum amount required by state law, and workers' compensation insurance as required by law. CONSULTANT will maintain in full force and effect during the term of this Agreement professional errors and omissions insurance in an amount not less than $100,000 per claim and in the aggregate for errors and/or omissions of CONSULTANT in the performance of this Agreement. All of CONSULTANT's policies of insurance shall: (i) Be issued by an insurance company that is admitted to conduct business in the State of California and that is rated in Best's Insurance Guide with a rating of A:VII or better. (ii) Name and list as additional insureds CITY, and its officers, agents, and employees. (iii) Be primary to any other similar insurance. Each insurance policy shall contain a provision that prohibits cancellation or modification without 30 days prior written notice to CITY, or ten (10) days notice if cancellation is due to nonpayment of premium. Additionally, CONSULTANT shall provide immediate notice to the City if it receives a cancellation or policy revision notice from the insurer. (iv) The insurance certificates evidencing the required insurance, copies of the full policies, and endorsements naming CITY, its officers, employees, and agents as additional insureds, shall be submitted to CITY, and CITY has the right to approve or disapprove any insurance procured by CONSULTANT under the standards of this Section. Procurement of insurance by CONSULTANT shall not be construed as a limitation of CONSULTANT's liability or as full performance of CONSULTANT's duties to indemnify, hold harmless, and defend under this Agreement. (v) The insurance provided by CONSULTANT shall be primary to any coverage available to CITY. The insurance policies (other than workers compensation and professional liability) shall include provisions for waiver of subrogation. (vi) Cover the services of CONSULTANT to be provided under the terms of this Agreement. (vii) Be acceptable to the City Attorney. (b) CONSULTANT's failure to comply with the insurance requirements of this Section shall be a material breach of this Agreement. CONSULTANT agrees that it will not cancel or reduce any required insurance coverage. CONSULTANT agrees that if it does not keep the aforesaid insurance in full force and effect, CITY may 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. (c) CONSULTANT shall not commence the performance of its services under this Agreement until the required insurance has been obtained and appropriate certificates of insurance have been filed with CITY. CONSULTANT agrees that provisions substantially similar to those set forth in this Section will be included in any subcontract executed by CONSULTANT. Page 4 of 9 R6876-0001 \1584231 v2.doc Al • ARTICLE 4 TERMINATION 4.1 Termination of Agreement (a) This Agreement may be terminated at anytime, with or without cause, by the CITY upon five (5) days prior written notice or by CONSULTANT upon thirty (30) days prior written notice. Notice shall be deemed served if completed in compliance with Section 6.15. (b) In the event of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no fault or failure of performance by CONSULTANT, CONSULTANT shall be paid compensation for all services performed by CONSULTANT, in an amount to be determined as follows: for work satisfactorily done in accordance with all of the terms and provisions of this Agreement as determined by the CITY, CONSULTANT shall be paid an amount equal to the percentage of services performed prior to the effective date of termination or cancellation in accordance with the work items; provided, in no event shall the amount of money paid under the foregoing provisions of this paragraph exceed the amount which would have been paid to CONSULTANT for the full performance of the services described in this Agreement. ARTICLE 5 CONFIDENTIALITY OF DOCUMENTS 5.1 Confidentiality All documents, information, emails, data, exhibits, plans, specifications, reports, photographs, images, video files and media created or developed by CONSULTANT pursuant to this Agreement ("Written Products") are confidential. CONSULTANT agrees that all Written Products shall not be made available to any third party. ARTICLE 6 GENERAL PROVISIONS 6.1 Representation The CITY's representative shall be the Director of Community Development or his or her designee, and the CONSULTANT's representative shall be Ms. Coleen Berg. These individuals shall be the primary contact persons for the parties regarding performance of this Agreement. 6.2 Fair Employment Practices/Equal Opportunity Acts In the performance of this Agreement, CONSULTANT shall comply with all applicable provisions of the California Fair Employment Practices Act (California Government Code Sections 12940-48), the applicable equal employment provisions of the Civil Rights Act Page 5 of 9 R6876-0001\1 584231 v2. doc 7 of 1964 (42 U.S.C. 200e-217), and the Americans with Disabilities Act of 1990 (42 U.S.C. § 11200, et seg.). 6.3 Personnel Ms. Coleen Berg shall be the designated representative providing services to CITY, and this designated representative shall not be replaced withoutthe CITY's priorwritten consent. 6.4 CONSULTANT's Representations CONSULTANT represents, covenants and agrees that: a) CONSULTANT is licensed, qualified, and capable of furnishing the labor, materials, and expertise necessary to perform the services in accordance with the terms and conditions set forth in this Agreement; b) there are no obligations, commitments, or impediments of any kind that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the extent required by the standard of practice, CONSULTANT has investigated and considered the scope of services performed, has carefully considered how the services should be performed, and understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. 6.5 Business License Required CONSULTANT shall obtain a CITY business license prior to commencing the services specified in this Agreement and maintain that business license throughout the duration of the term of the Agreement. 6.6 Conflicts of Interest CONSULTANT agrees not to accept any employment or representation during the term of this Agreement or within twelve (12) months after completion of the work under this Agreement which is or may likely make CONSULTANT "financially interested" (as provided in California Government Code Sections 1090 and 87100) in any decisions made by CITY on any matter in connection with which CONSULTANT has been retained pursuant to this Agreement. 6.7 Legal Action (a) Should either party to this Agreement bring legal action against the other, the validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, excluding California's choice of law rules. Venue for any such action relating to this Agreement shall be in the Los Angeles County Superior Court. (b) If any legal action or other proceeding, including action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged dispute, Page 6 of 9 R6876-0001 \1584231 v2.doc � • breach, default or misrepresentation in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees, and other costs, in addition to any other relief to which the party may be entitled. (c) Should any legal action about a project between CITY and a party other than CONSULTANT require the testimony of CONSULTANT when there is no allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for its testimony and preparation to testify at the hourly rates in effect at the time of such testimony. 6.8 Assignment Neither this Agreement nor any part thereof shall be assigned by CONSULTANT without the prior written consent of the CITY. Any such purported assignment without written consent shall be null and void, and CONSULTANT shall hold harmless, defend and indemnify the CITY and its officers, officials, employees, agents and representatives with respect to any claim, demand or action arising from any unauthorized assignment. Notwithstanding the above, CONSULTANT may use the services of persons and entities not in CONSULTANT's direct employ, when it is appropriate and customary to do so. Such persons and entities include, but are not necessarily limited to, surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of subcontractors for additional services shall not be unreasonably restricted by the CITY provided CONSULTANT notifies the CITY in advance. 6.9 Independent Contractor CONSULTANT is and shall at all times remain, as to the CITY, a wholly independent contractor. Neither the CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein set forth, and CONSULTANT is free to dispose of all portions of its time and activities which it is not obligated to devote to the CITY in such a manner and to such persons, firms, or corporations as the CONSULTANT wishes except as expressly provided in this Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability on behalf of the CITY or otherwise act on behalf of the CITY as an agent. CONSULTANT shall not, at any time or in any manner, represent that it or any of its agents, servants or employees, are in any manner agents, servants or employees of CITY. CONSULTANT agrees to pay all required taxes on amounts paid to CONSULTANT under this Agreement, and to indemnify and hold the CITY harmless from any and all taxes, assessments, penalties, and interest asserted against the CITY by reason of the independent contractor relationship created by this Agreement. CONSULTANT shall fully comply with the workers' compensation law regarding CONSULTANT and its employees. CONSULTANT further agrees to indemnify and hold the CITY harmless from any failure of CONSULTANT to comply with applicable workers' compensation laws. The CITY shall have the right to offset against the amount of any fees due to CONSULTANT under this Agreement any amount due to the CITY from CONSULTANT as a result of its failure to promptly pay to the CITY any reimbursement or indemnification arising under this Article. Page 7 of 9 R6876-0001 \1584231 v2.doc 01 6.10 Titles The titles used in this Agreement are for general reference only and are not part of the Agreement. 6.11 Entire Agreement This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended, or provisions or breach may be waived, only by subsequent written agreement signed by both parties. 6.12 Construction In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 6.13 Non -Waiver of Terms, Rights and Remedies Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by the CITY of any payment to CONSULTANT constitute or be construed as a waiver by the CITY of any breach of covenant, or any default which may then exist on the part of CONSULTANT, and the making of any such payment by the CITY shall in no way impair or prejudice any right or remedy available to the CITY with regard to such breach or default. 6.14 Severability If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 6.15 Notice Except as otherwise required by law, any notice or other communication authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during CITY's regular business hours or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses listed below, or at such other address as one party may notify the other: Page 8 of 9 R6876-0001 \1584231 v2.doc 10 To CITY: Mr. Joel Rojas, Director of Community Development City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 To CONSULTANT: Ms. Coleen Berg, Mediator Choice Mediation 4703 Merrill Street Torrance, CA 90503 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: Dated: ATTEST: An City Clerk R6876-0001 \1 584231 v2.doc MS. COLEEN BERG ("CONSULTANT') CITY OF RANCHO PALOS VERDES ("CITY") Mayor APPROVED AS TO FORM: Page 9 of 9 City Attorney 11 Exhibit "A": City of Rancho Palos Verdes Local View Restoration Guidelines and Procedures 12