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HomeMy WebLinkAboutReso - CC - 017-2015RESOLUTION NO. 17-2015 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH MIG TO PREPARE THE UPDATE OF THE CITY'S GENERAL PLAN AND ZONING ORDINANCE WHEREAS, the City of Burlingame has embarked on an update to the City's General Plan and zoning ordinance to provide a comprehensive plan for the community; and WHEREAS, the Community Development Department sought proposals from qualified consulting firms to prepare the update of the General Plan and Zoning Ordinance; and WHEREAS, the City has selected MIG to prepare the update of the General Plan based on its experience preparing similar documents in the Bay Area region, its experience with zoning ordinance updates, its comprehensive community participation and outreach plan, and the expertise of the team assembled for preparation of the update; and WHEREAS, an agreement has been prepared incorporating the Work Program, Cost Estimate and Project Schedule prepared by MIG in the amount of $1,320,281.00, which was found to be adequate to complete the update of the General Plan and Zoning Ordinance; and WHEREAS, because the agreement will authorize work in excess of $100,000, City Council approval is required. NOW, THEREFORE, BE IT RESOLVED AND ORDERED: 1. The City Manager is authorized and directed to enter into a Professional Services Agreement with MIG for the update of the General Plan and Zoning Ordinance, consistent with the Work Program attached to this resolution, for a maximum cost of $1,320,281.00, as stated in the Work Program. 2. The City Clerk is directed to attest to the signature of the City Manager upon execution of the Professional Services Agreement. Terry Nadel, Mayor or 1 Resolution No. I, Mary Ellen Kearney, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was introduced at a regular meeting of the City Council, held on the 17th day of February, 2015, and as adopted thereafter by the following vote: AYES: COUNCILMEMBERS: BROWNRI GG, KEIGHRAN, NAGEL, ORTIZ, ROOT NAYES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE (R� �A Mary Ellen Kear ey, City CI rk 2 AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF BURLINGAME AND MIG TO PREPARE THE UPDATE OF THE CITY'S GENERAL PLAN AND ZONING ORDINANCE THIS AGREEMENT is by and between MIG ("Consultant") and the City of Burlingame, a public body of the State of California ("City"). Consultant and City agree: 1. Services. Consultant shall provide the Services set forth in Exhibit A, attached hereto and incorporated herein. 2. Compensation. Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum compensation amount, Consultant agrees to perform all of the Scope of Services herein required of Consultant for $1,320,281, including all materials and other reimbursable amounts ("Maximum Compensation"). Consultant shall submit invoices on a monthly basis. All bills submitted by Consultant shall contain sufficient information to determine whether the amount deemed due and payable is accurate. Bills shall include a brief description of services performed, the date services were performed, the number of hours spent and by whom, a brief description of any costs incurred and the Consultant's signature. 3. Term. This Agreement commences on full execution hereof and terminates on June 30, 2016 unless otherwise extended or terminated pursuant to the provisions hereof. Consultant agrees to diligently prosecute the services to be provided under this Agreement to completion and in accordance with any schedules specified herein. In the performance of this Agreement, time is of the essence. Time extensions for delays beyond the Consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator prior to the expiration of the specified completion date. 4. Assignment and Subcontracting. A substantial inducement to City for entering into this Agreement is the professional reputation and competence of Consultant. Neither this Agreement nor any interest herein may be assigned or subcontracted by Consultant without the prior written approval of City. It is expressly understood and agreed by both parties that Consultant is an independent contractor and not an employee of the City. 5. Insurance. Consultant, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof, acceptable to the City, the insurance coverages specified in Exhibit B, "City Insurance Requirements," attached hereto and incorporated herein by reference. Consultant shall demonstrate proof of required insurance coverage prior to the commencement of services required under this Agreement, by delivery of endorsements and certificates of insurance to City. 6. Indemnification. Consultant shall indemnify, defend, and hold City, its directors, officers, employees, agents, and volunteers harmless from and against any and all liability, claims, suits, actions, damages, and causes of action arising out of, pertaining or relating to the negligence, recklessness or willful misconduct of Consultant, its employees, subcontractors, or agents, or on account of the performance or character of the Services, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, employees, agents, or volunteers. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in section 2778 of the California Civil Code. Agreement for Professional Services Between the City of Burlingame and MIG for preparation of an Update to the General Plan and Zoning Code Update Notwithstanding the foregoing, for any design professional services, the duty to defend and indemnify City shall be limited to that allowed pursuant to California Civil Code section 2782.8. Acceptance of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 7. Termination and Abandonment. This Agreement may be cancelled at any time by City for its convenience upon written notice to Consultant. In the event of such termination, Consultant shall be entitled to pro -rated compensation for authorized Services performed prior to the effective date of termination provided however that City may condition payment of such compensation upon Consultant's delivery to City of any or all materials described herein. In the event the Consultant ceases performing services under this Agreement or otherwise abandons the project prior to completing all of the Services described in this Agreement, Consultant shall, without delay, deliver to City all materials and records prepared or obtained in the performance of this Agreement. Consultant shall be paid for the reasonable value of the authorized Services performed up to the time of Consultant's cessation or abandonment, less a deduction for any damages or additional expenses which City incurs as a result of such cessation or abandonment. 8. Ownership of Materials. All documents, materials, and records of a finished nature, including but not limited to final plans, specifications, video or audio tapes, photographs, computer data, software, reports, maps, electronic files and films, and any final revisions, prepared or obtained in the performance of this Agreement, shall be delivered to and become the property of City. All documents and materials of a preliminary nature, including but not limited to notes, sketches, preliminary plans, computations and other data, and any other material referenced in this Section, prepared or obtained in the performance of this Agreement, shall be made available, upon request, to City at no additional charge and without restriction or limitation on their use. Upon City's request, Consultant shall execute appropriate documents to assign to the City the copyright or trademark to work created pursuant to this Agreement. Consultant shall return all City property in Consultant's control or possession immediately upon termination. 9. Compliance with Laws. In the performance of this Agreement, Consultant shall abide by and conform to any and all applicable laws of the United States and the State of California, and all ordinances, regulations, and policies of the City. Consultant warrants that all work done under this Agreement will be in compliance with all applicable safety rules, laws, statutes, and practices, including but not limited to Cal/OSHA regulations. If a license or registration of any kind is required of Consultant, its employees, agents, or subcontractors by law, Consultant warrants that such license has been obtained, is valid and in good standing, and Consultant shall keep it in effect at all times during the term of this Agreement, and that any applicable bond shall be posted in accordance with all applicable laws and regulations. 10. Confect of Interest. Consultant warrants and covenants that Consultant presently has no interest in, nor shall any interest be hereinafter acquired in, any matter which will render the services required under the provisions of this Agreement a violation of any applicable state, local, or federal law. In the event that any conflict of interest should nevertheless hereinafter Agreement for Professional Services Between the City of Burlingame and MIG for preparation of an Update to the General Plan and Zoning Code Update arise, Consultant shall promptly notify City of the existence of such conflict of interest so that the City may determine whether to terminate this Agreement. Consultant further warrants its compliance with the Political Reform Act (Government Code § 81000 et seq.) respecting this Agreement. 11. Whole Agreement and Amendments. This Agreement constitutes the entire understanding and Agreement of the parties and integrates all of the terms and conditions mentioned herein or incidental hereto and supersedes all negotiations or any previous written or oral Agreements between the parties with respect to all or any part of the subject matter hereof. The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation, or undertaking established herein. This Agreement may be amended only by a written document, executed by both Consultant and the City Manager, and approved as to form by the City Attorney. Such document shall expressly state that it is intended by the parties to amend certain terms and conditions of this Agreement. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. Multiple copies of this Agreement may be executed but the parties agree that the Agreement on file in the office of the City Clerk is the version of the Agreement that shall take precedence should any differences exist among counterparts of the document. This Agreement and all matters relating to it shall be governed by the laws of the State of California. 12. Capacity of Parties. Each signatory and party hereto warrants and represents to the other party that it has all legal authority and capacity and direction from its principal to enter into this Agreement and that all necessary actions have been taken so as to enable it to enter into this Agreement. 13. Severability. Should any part of this Agreement be declared by a final decision by a court or tribunal of competent jurisdiction to be unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the unexcised portion, can be reasonably interpreted to give effect to the intentions of the parties. 14. Notice. Any notice required or desired to be given under this Agreement shall be in writing and shall be personally served or, in lieu of personal service, may be given by (i) depositing such notice in the United States mail, registered or certified, return receipt requested, postage prepaid, addressed to a party at its address set forth in Exhibit A; (ii) transmitting such notice by means of Federal Express or similar overnight commercial courier ("Courier"), postage paid and addressed to the other at its street address set forth below; (iii) transmitting the same by facsimile, in which case notice shall be deemed delivered upon confirmation of receipt by the sending facsimile machine's acknowledgment of such with date and time printout; or (iv) by personal delivery. Any notice given by Courier shall be deemed given on the date shown on the receipt for acceptance or rejection of the notice. Either party may, by written notice, change the address to which notices addressed to it shall thereafter be sent. Agreement for Professional services Between the City of Burlingame and MIG for preparation of an Update to the General Plan and Zoning Code Update 15. Miscellaneous. Except to the extent that it provides a part of the definition of the term used herein, the captions used in this Agreement are for convenience only and shall not be considered in the construction of interpretation of any provision hereof, nor taken as a correct or complete segregation of the several units of materials and labor. Capitalized terms refer to the definition provide with its first usage in the Agreement. When the context of this Agreement requires, the neuter gender includes the masculine, the feminine, a partnership or corporation, trust or joint venture, and the singular includes the plural. The terms "shall", "will", "must" and "agree" are mandatory. The term "may" is permissive. The waiver by either party of a breach by the other of any provision, of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. When a party is required to do something by this Agreement, it shall do so at its sole cost and expense without right to reimbursement from the other party unless specific provision is made otherwise. Where any party is obligated not to perform any act, such party is also obligated to restrain any others within its control from performing such act, including its agents, invitees, contractors, subcontractors and employees. IN WITNESS WHEREOF, Consultant and City execute this Agreement. CITY OF BURLINGAME 501 Primrose Road Burlingame, CA 94010 By:yg � Lisa Goldman City Manager na+P. a I v� ( IV-) Mary Ellen Kearney City Clerk CONSULTANT MIG OAA TT A _ _ Date: 1,&Ati Federal Employer ID Number: ' ?➢ 11 901 P Agreement for Professional Services Between the City of Burlingame and MIG for preparation of an Update to the General Plan and Zoning Code Update Approved as to form: Kathleen Kane City Attorney Attachments: Exhibit A Scope of Services Exhibit B City Insurance Provisions 5