CITY COUNCIL: Resolution for Consultant Services Agreement with RBF Consulting for Initial Study for Golden Bough Theatre Remodel Project

Meeting Date: 1 December 2009
Prepared by: Sean Conroy, Planning & Building Services Manager

City Council
Agenda Item Summary

Name: Consideration of a Resolution authorizing the City Administrator to execute a Consultant Services Agreement with RBF Consulting to prepare an Initial Study for the Golden Bough Theatre remodel project in an amount not to exceed $11,627.

Description: The Golden Bough Theatre has proposed a project to expand its existing building. Staff has determined that the project is not exempt from the California Environmental Quality Act (CEQA). RBF Consulting will prepare an Initial Study in accordance with CEQA for the project.

Overall Cost:
City Funds: $11,627 from Fund 50-24050-0422.
Grant Funds: N/A

Staff Recommendation: Adopt the Resolution.

Important Considerations: Projects that are not exempt from CEQA require environmental review to determine if potentially significant impacts may result from the project. If no significant impacts are identified, a Negative Declaration or Mitigated Negative Declaration may be adopted. If significant impacts are identified that cannot be mitigated, an Environmental Impact Report would be required.

Decision Record: N/A

Reviewed by:

__________________________ _____________________
Rich Guillen, City Administrator Date

CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
RESOLUTION 2009-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA AUTHORIZING THE CITY ADMINISTRATOR TO EXECUTE A CONSULTANT SERVICES AGREEMENT WITH RBF CONSULTING TO PREPARE AN INITIAL STUDY FOR THE GOLDEN BOUGH THEATRE REMODEL PROJECT IN AN AMOUNT NOT TO EXCEED $11,627

WHEREAS, The City of Carmel-by-the-Sea is a unique community that prides itself its community character; and

WHEREAS, the City has adopted a General Plan and Municipal Code that strive to protect the environmental resources of the City; and

WHEREAS, the Golden Bough Theatre project is not exempt from the California
Environmental Quality Act (CEQA); and

WHEREAS, RBF Consulting submitted a proposal to prepare and Initial Study for the Golden Bough Theatre project in accordance with CEQA.

NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA does hereby:

1. Authorize the City Administrator to execute a contract with RBF Consulting based on the attached scope of work. Funds for this contract will be paid from Fund 50-24050-0422.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this 1st day of December 2009 by the following roll call vote:

AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:

ATTEST: SIGNED,

_____________________ ________________________
Heidi Burch, City Clerk SUE McCLOUD, MAYOR

CONSULTANT SERVICES AGREEMENT
THIS AGREEMENT, dated this ___ day of ______ 2009 is by and between the CITY OF CARMEL-BY-THE-SEA, a municipal corporation of the State of California, hereinafter referred to as the “City”, and RBF Consulting, a California Corporation hereinafter referred to as the “Consultant”.

I. SERVICES BY CONSULTANT
A. Consultant will perform all services, carry out all responsibilities, and prepare such reports as described in the Scope of Services described in Attachment “A” hereto, which is incorporated herein by this reference.

B. Said services and all duties incidental or necessary thereto shall be performed diligently and competently and in accordance with generally accepted professional standards of care and performance.

II. COMPENSATION
A. City shall pay Consultant for the services identified in the attached Scope of Services in the amount not to exceed $11,627 (includes a 10% contingency). Such amount shall constitute full and complete payment by City under this Agreement.

Consultant agrees to perform all services required by this Agreement on an ongoing basis until this Agreement is amended or terminated.

B. Consultant shall submit an itemized invoice to City. Each invoice shall reference the specific project assignments completed during that period for which payment is requested.

Payment for work shall be made by City within forty-five (45) days of receipt of invoice.

C. City shall have the right to withhold payment to Consultant for any work not completed in a satisfactory manner until such time as Consultant modifies such work so that the same is satisfactory as determined by the City and in accordance with generally accepted professional standards of care and performance.

D. The City will compensate Consultant for actual out-of-pocket expenses incurred by Consultant in connection with services performed in accordance with the following schedule:

Incurred Expenses – by an amount equal to actual incurred expenses
Automobile Mileage – at the current rate allowed by the Internal Revenue Service
Photocopies – at the rate of $0.10 per page for each document copy in excess of ten (10) document copies or as specified in the attached scope of work and budget.

Incurred expenses include, but are not limited to, authorized travel by common carrier, long-distance telephone calls, and other similar expenses. Incurred expenses do not include normal overhead expenses.

III. OWNERSHIP OF WORK PRODUCT
A. Ownership of any reports, data, studies, surveys, charts, maps, figures,
photographs, memoranda, and any other documents which are developed, compiled, or produced as a result of this Agreement, whether or not completed, shall be vested in the City. Use of such documents by City for project (s) not the subject of this Agreement shall be at City’s sole risk without legal liability or exposure to Consultant.

B. Methodology, materials, software, logic and systems developed under the said Contract are the property of Consultant.

IV. GENERAL ADMINISTRATION AND MANAGEMENT
A. The Planning Services Manager of the City of Carmel-by-the-Sea, or his designee, shall have primary administrative responsibility for the City under this Agreement, and shall review and approve the Consultant's invoices to the City under this Agreement.

B. The Planning Services Manager of the City of Carmel-by-the-Sea, or his designee, shall have primary responsibility for overseeing and reviewing the Consultant's preparation of products as outlined in the Attachment “A”, and shall coordinate all communications with the Consultant from the City.

V. COMPLETION DATE
A. Consultant will diligently proceed with the work contracted for, but it is expressly agreed and understood that Consultant shall not be held responsible for delays occasioned by factors beyond its control, nor by factors that could not reasonably have been foreseen at the time of the execution of the Agreement between the parties.

VI. SUSPENSION OF AGREEMENT/DISPUTES
A. The Consultant and the City reserve the right to terminate or suspend this Agreement at any time by giving twenty (20) days' written notice to the other party. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports, or other material prepared by the Consultant pursuant to this Agreement shall be submitted to the City, and the Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on the project prior to the date of suspension or termination.

B. In the event that the City requests termination of the work prior to completion, Consultant reserves the right to complete such analyses and records as may be necessary to place its files in order.

C. Any legal proceeding concerning this Agreement shall be brought and maintained in the Superior Court of California in and for the County of Monterey. The prevailing party in such legal proceeding (including mediation and arbitration) shall be entitled to a reasonable attorneys' fee in addition to any other remedy available to said prevailing party.

VII. NON-DISCRIMINATION/AFFIRMATIVE ACTION
A. The Consultant and any of its subconsultants will not discriminate against any employee or applicant for employment because of race, creed, color, sex, age, national origin, marital status, physical or other motor handicap, unless based upon bona fide occupational qualification. The Consultant will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, sex, age, national origin, marital status, physical or other motor handicap.

VIII. ASSIGNMENT
This Agreement may not be assigned or otherwise transferred by the parties hereto without the written consent of the other party.

IX. MODIFICATION
A. No change, alteration, modification, or addition to this Agreement will be effective unless it is in writing and properly signed by all parties hereto.

X. HOLD HARMLESS
A. The Consultant shall defend, indemnify and hold the City and its officers, agents, and employees, harmless from all suits, claims or liabilities of any nature, including attorney fees, costs and expenses, for or on account of injuries or damages sustained by any persons or omissions of the Consultant, its agents, subconsultants or employees pursuant to this Agreement, or on account of any unpaid wages or other remuneration for services; and if a suit in respect to the above is filed, the Consultant shall appear and defend the same at its own cost and expense, and if judgment be rendered or settlement made requiring payment of damages by the City, which damages are based in whole or part on the negligent activities or omissions of the Consultant, its agents or employees, the Consultant shall pay the same.

XI. COMPLIANCE WITH LAWS
A. The Consultant and sub-consultants shall be in compliance with all applicable State, Federal and City laws and safety regulations.

XII. INSURANCE
A. Without limiting Consultant’s duty to indemnify, consultant shall maintain in effect throughout the term of this Agreement a policy or policies of insurance covering all of its operations (including public liability coverage, property damage coverage and professional malpractice) with the following minimum limits of liability:

a. COMMERCIAL GENERAL LIABILITY INSURANCE:
Commercial General Liability, including but not limited to, premises, personal injuries, products and completed operations, with a combined single limit of not less than $1,000,000.00 per occurrence.

1. Bodily injury $1,000,000.00 per occurrence and $1,000,000.00 aggregate and $1,000,000.00 property damage; and

2. A combined single limit of not less than $1,000,000.00 per occurrence.

b. AUTOMOBILE LIABILITY INSURANCE:
Comprehensive automotive liability covering all motor vehicles including owned, leased, non-owned, and hired vehicles, used in providing services under the Agreement, with a combined single limit of not less than $1,000,000.00 per occurrence.

1. Bodily injury $1,000,000.00 per occurrence and $1,000,000.00 aggregate and $1,000,000.00 property damage; and

2. A combined single limit of not less than $1,000,000.00 per occurrence.
c. WORKER’S COMPENSATION INSURANCE:
Worker’s compensation insurance in accordance with California Labor Code
section 3700 and with a minimum of $1,000,000.00 per occurrence for employer’s liability.

XIII. ADDITIONAL SERVICES
A. It is understood and agreed by City and the Consultant that the City might request Consultant to render additional professional services beyond the original Scope of Services as defined in Exhibit “A” to this Agreement. Such additional services may include those due to abnormal conditions beyond the Consultant's control, changes in phasing,
time delays, changes in scope or requirements on the part of others and services necessitated by legal challenge of the work products. Any work requested of Consultant by City beyond that identified in Attachment “A” shall constitute additional services. Such work will be undertaken only upon written authorization of the City, written agreement by all parties, and based upon an agreed amount of compensation.

XIV. INDEPENDENT CONTRACTOR
A. The Consultant is and shall be at all times during the term of this Agreement an independent contractor.

B. The Consultant shall maintain a valid business license with the City of Carmel-by-the-Sea at all times during the term of this Agreement.

XV. NOTICES
A. Any notice to be given to the parties hereunder shall be addressed as follows (until notice of a different address is given to the parties):

City Consultant
City of Carmel-by-the-Sea RBF Consulting
PO Drawer G 3180 Imjin Parkway, Ste 110
Carmel, CA 93921 Marina, CA 93933

Any and all notices or other communications required or permitted relative to this Agreement shall be in writing and shall be deemed duly served and given when personally delivered to either of the parties to whom it is directed; or in lieu of such personal service, when deposited in the United States mail, first class, postage prepaid, addressed to CITY or to CONSULTANT at the addresses set forth above.

Either party may change their address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided for in the preceding paragraph.

IN WITNESS WHEREOF, the parties have executed this Agreement on the date first aove written.

CITY OF CARMEL-BY-THE-SEA, RBF CONSULTING
CALIFORNIA

By: By:

_________________________ ________________________________
Rich Guillen, Bill Wiseman
City Administrator Vice President