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HomeMy WebLinkAbout08 - PSA for Federal Advocacy Services Related to Harbor Dredging Efforts and ProgramsQ PpRT CITY OF O 6'tt i3 z NEWPORT BEACH <,FOR�P City Council Staff Report February 27, 2018 Agenda Item No. 8 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Raymund Reyes, Management Specialist PHONE: 949-644-3325 TITLE: Request City Council Approval of Professional Services Agreement with Carpi & Clay, Inc. for Federal Advocacy Services Related to Harbor Dredging Efforts and Programs ABSTRACT: The City has been actively working the U.S. Army Corps of Engineers (Corps) and to a limited extent, federal elected representatives, to present and educate them on our dredging needs in Newport Harbor, as well as to get our project on the Corps' upcoming project funding list. Keeping our project in focus and on the recommended funding list of both the Corps and the many elected representatives that need to review and approve it is, and continues to be, a significant challenge particularly because we do not have a presence in Washington, D.C. and that so many other agencies and organizations are also competing for their attention and support. In order to better ensure that the City's dredging project needs are understood and stay in the forefront view of the federal agencies and elected representatives, staff is recommending approval of a professional services agreement with Carpi & Clay, Inc. (Carpi & Clay) to provide federal advocacy services to assist with advancing our harbor dredging project(s) through the federal funding approval and permitting process. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) Approve a Professional Services Agreement with Carpi & Clay, Inc. for federal advocacy services at a not -to -exceed fee of $141,000.00 and authorize the Mayor and City Clerk to execute the Agreement; and c) Approve Budget Amendment No. 18BA-026 appropriating $141,000.00 from the General Plan Update project (01201928-980000-18M12) to Account No. 01080005-811008. Request City Council Approval of Professional Services Agreement with Carpi & Clay, Inc. for Federal Advocacy Services Related to Harbor Dredging Efforts and Programs February 27, 2018 Page 2 FUNDING REQUIREMENTS: Approval of the Budget Amendment will record and appropriate $141,000.00 in increased expenditure appropriations from General Plan Update project. Funds will be placed in Public Works Administration Professional Services Account No. 01080005-811008. DISCUSSION: The Corps is responsible for maintaining the federally authorized harbor design depths in most of the harbor including the navigational channels, anchorage, turning basin and mooring areas. Although most of the mooring areas are still within their design depth, both the anchorage and turning basin as well as the majority of the main navigational channels require dredging due to accumulated sediment deposits. The latest Corps bathometry survey of the Lower Harbor completed in 2017 estimated that there is approximately 650,000 cubic yards of sediment remaining over the original federal authorized design depth. These areas need to be dredged in order to maintain adequate navigation. Additionally, said dredging will also improve the tidal flushing action which will in turn further improve bay water quality. The last major Lower Harbor dredging project in 2012 was successful in removing much of the accumulated material however, due to financial limitations and sediment disposal constraints, the project scope was reduced and a large amount of material was left and remains to be removed. Since that dredging effort, the City has been interested in pursuing another project to complete the dredging of the Lower Harbor to deepen it back to the original design depths. Over the past couple of years, staff has been actively working at both the federal agency and legislative levels to develop project support and funding. As it stands, the City is currently funding and completing the necessary sediment testing effort required as part of the first steps for dredging. Our next step is to ask for a $400,000 line item in the Corps' 2019 budget to prepare the necessary dredging design package as well as future funds to conduct the actual full dredging project in the coming years. It should also be noted that due to the limited federal funding, coupled with high demand across the nation for dredging, Corps staff have advised us that projects with local matching funds will score higher and are more likely to receive funding. Understanding the timeline and the various budget milestones within the federal process, Public Works staff is proactively taking measures to help expedite the dredging project delivery process. An outside consultant is currently performing the necessary sediment characterization study that will assist the Corps in designing a dredge and disposal plan for Newport Harbor. Another consultant is currently working on development of an economic impact analysis of Newport Harbor. This report will need to be submitted as part of the Corps' proposed dredging Work Plan in March 2018. It has also become apparent that in order to increase our dredging program's exposure and federal funding chances, the City needs assistance with project advocacy and legislative analysis services at the federal level. To address this need, the Finance Department's Purchasing Division issued a Request for Proposals (RFP) in September 2017 in order to solicit proposals from federal advocacy firms that have direct experience in obtaining funding M. Request City Council Approval of Professional Services Agreement with Carpi & Clay, Inc. for Federal Advocacy Services Related to Harbor Dredging Efforts and Programs February 27, 2018 Page 3 and approvals for federal dredging projects and related items. Nine (9) proposals were received by City's Purchasing Agent as a result of the RFP. The City evaluated all proposals using a Qualifications -Based Selection (QBS) process focusing on the following criteria: • Operational Qualifications and Experience of the Proposer; • The Proposer's Demonstrated Understanding of the City's Scope and Requirements; • The Proposer's Ability to Carry Out the Requested Services; and • Proposed Service Costs. The nine proposals were short-listed down to the top three firms that best fit the qualifications and experience requested, then they were reviewed/evaluated in further detail. Based on the evaluations, Carpi & Clay, Inc. (Carpi & Clay) was deemed to be the highest rated and best - qualified proposer to assist the City with pursuit of a federally funded and approved dredging project. Carpi & Clay is a California corporation established in 1986 that focuses on representing, advancing and protecting the financial, legislative and regulatory interests of various government agencies. Carpi & Clay has extensive involvement in California water related issues as well as extensive experience working with other California port and harbor cities such as San Francisco, Long Beach, Santa Barbara and Santa Cruz. It should also be noted that Carpi & Clay currently serves as the federal advocacy consultant for the California Marine Affairs and Navigation Conference (CMANC) which is a coalition of California harbors and ports dedicated to ensuring that California's maritime interests are supported by the federal and state governments to the greatest extent possible. (The City has been a standing member of CMANC and is currently on the Board.) Carpi & Clay operates through their Washington D.C. office and serves as a local, direct connection with federal legislators and regulatory agencies, particularly the Corps Headquarters. Based on the evaluation of the firm's qualifications and experience, Public Works recommends awarding a contract to Carpi & Clay for federal advocacy services. Following cost negotiations, Carpi & Clay has agreed to a $4,700 per month retainer. This includes all overhead operating costs and an annual travel trip to Newport Beach. The agreement will be for a thirty (30) month term with a not -to - exceed amount of $141,000.00. During the agreement period, Carpi & Clay will work with the City in the development of a detailed legislative and regulatory agenda, prioritize items, assess strategy, and formulate plans of action in order to further the City's harbor interests. They will serve as an advocate of the City by attending meetings with various legislative groups, bodies and committees. In doing so, the City will be well represented in its efforts to secure federal funding, gather and act upon opportunities for grant funding, and actively lobby federal agencies, Congress, the White House and other federal agency officials in garnering support of City projects and priorities. RX Request City Council Approval of Professional Services Agreement with Carpi & Clay, Inc. for Federal Advocacy Services Related to Harbor Dredging Efforts and Programs February 27, 2018 Page 4 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Professional Services Agreement with Carpi & Clay, Inc. Attachment B — Budget Amendment ATTACHMENT A PROFESSIONAL SERVICES AGREEMENT WITH CARPI & CLAY, INC. FOR FEDERAL ADVOCACY SERVICES — DREDGING EFFORTS & PROGRAMS THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 27th day of February, 2018 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and CARPI & CLAY, INC., a California corporation ("Consultant"), whose address is 601 New Jersey Avenue, NW, Suite 300, Washington, D.C. 20001, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide professional advocacy services related the City's legislative policy interests and assist in the development of strategies for advancing actions at the federal level that are beneficial to the City and its ocean/harbor dredging programs, projects and services, including securing federal funding to carry out the City's dredging efforts ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: The term of this Agreement shall commence on the Effective Date, and shall terminate on August 31, 2020, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. RM 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on fixed fee basis in accordance with the provisions of this Section and the Schedule of Billing attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Forty One Thousand Dollars and 001100 ($141,000.00), without prior written authorization from City. No billing changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Carpi & Clay, Inc. Page 2 8-6 Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Julie Minerva to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. Carpi & Clay, Inc. Page 3 RIM 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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, 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, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant Carpi & Clay, Inc. Page 4 .: shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner orjoint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. Carpi & Clay, Inc. Page 5 Elm 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. Carpi & Clay, Inc. Page 6 I 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. Carpi & Clay, Inc. Page 7 8-11 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Julie Minerva Carpi & Clay, Inc. 601 New Jersey Avenue, NW, Suite 300 Washington, D.C. 20001 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set Carpi & Clay, Inc. Page 8 8-12 forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Carpi & Clay, Inc. Page 9 8-13 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.8 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. 28.9 Controllinq Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Carpi & Clay, Inc. Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp 2 �g City Attorney ATTEST: Date: in Leilani 1. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Marshall "Duffy" Duffield Mayor CONSULTANT: Carpi & Clay, Inc., a California corporation Date: By: Kenneth Carpi President and Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B -- Schedule of Billing Rates Exhibit C — Insurance Requirements Carpi & Clay, Inc. Page 11 8-15 EXHIBIT A SCOPE OF SERVICES Carpi & Clay, Inc. Page A-1 8-16 Project Approach & Methodology The following charts detail two strategic work plans—short and long-term—covering the full scope of Services to be provided by Consultant. Built into both plans is the necessary flexibility to accommodate changes in Washington as well as issues that may emerge at the local level. Carpi & Clay Page 13 8-17 O. STRATEGY Work with the City to develop a robust legislative/regulatory agenda. This task would involve a visit by the core Carpi & Clay team to the City for an intensive strategic planning session. The Carpi & Clay team would use this opportunity to discuss I. Task project and regulatory priorities with City leadership, tour projects, and meet with City officials as appropriate. Carpi & Clay would present the City with its assessments of opportunities and challenges in Washington and the new legislative climate and political dynamics, direction on leveraging local resources to advance federal goals, and a plan for coordinating grassroots, grasstops, and other public relations resources. Following this strategic planning session, Carpi & Clay will prepare a memorandum identifying the City's top priorities Deliverable and a road map for achieving them. In addition, Carpi & Clay will assist with issue fact sheets and justification materials for identified priorities. City officials will use these materials during meetings in Washington. Ideally, this initial strategy session would take place soon after engagement. The memorandum would be provided within two Schedule weeks of the strategic planning session. Issue fact sheets and justification materials would be drafted in concert with City staff and provided prior to any visit to Washington. II. Task Advocate for Corps FY18 work plan project funding. Deliverable Immediate advocacy before district, division, and HQ levels of the Corps, the ASA and OMB. Advocacy will include, but not be Carpi & Clay Page 13 8-17 Carpi & Clay Page 14 W. limited to, in-person meetings, calls, written correspondence, and strategic outreach by key City officials. Schedule Immediate and continuing through the course of calendar year 2017 and into the first quarter of 2018. III. Task Maintain regular communication and provide written reports. Organize conference calls with the appropriate level frequency is key to advancing federal goals. We will work with the City Deliverable to establish this routine. Outside of these calls we will utilize all available resources to communicate in a timely fashion and on a regular basis as well as providing written quarterly reports and an annual summary of federal efforts. Schedule Immediate. IV. Task Plan a Washington trip for the City. Working with the City, Carpi & Clay will prepare a list of potential dates and targeted meetings in Washington to take place this fall. Meetings will include the City's congressional delegation, the White House, OMB, Council on Environmental Quality, Corps HQ, ASA, Governor Brown's Washington office, Deliverable and outside groups as appropriate. Carpi & Clay will request these meetings on behalf of the City and prepare the agendas. Carpi & Clay will keep the City apprised of meetings as they are secured. In addition, Carpi & Clay will assist in the preparation of associated white papers, letters, talking points, etc. In order to influence the FY18 work plan dates for the City's trip should be selected as soon as appropriate. Carpi & Clay Schedule will initiate formal meeting requests no later than four weeks prior to the trip. Meeting materials should be drafted and provided to the City prior to departing California for Washington. V. Task Advise on the Administration's Development of an Infrastructure Proposal. To date we have seen only high-level principles introduced, but our team meets regularly with the D.C. infrastructure Deliverables community to help our clients to be in the best position for any changes to existing programs and to be ready for any new opportunities. To that end, we would advise the City on strategic measures to be effective in these efforts. Carpi & Clay Page 14 W. Schedule Immediate and ongoing Carpi & Clay Page 15 8-19 LONG-TERM STRATEGY I. Task Advise the City on House and Senate legislative platforms for the second session of the 115th Congress. For the City to successfully execute its agenda, it is imperative Deliverable that it be aware of and responsive to the larger political context. Carpi & Clay will advise the City through regular communications as changes they develop. Schedule Carpi & Clay will advise the City of these dynamics throughout the course of the contract. II. Task Conduct extensive follow-up after the City's Washington meetings. Carpi & Clay will accompany the City to each of its congressional, federal Agency and Executive Branch meetings Deliverable and take copious notes to ensure that the City responds to any and all follow-up items, including thank -you letters, requests for additional or more specific information, etc. Follow-up items will be reviewed during a conference call following a Washington visit. To decide the most appropriate Schedule form of response, action items will be distributed among the City and Carpi & Clay team members for implementation over the course of the week. III. Task Present the City with competitive funding and grant opportunities. As new funding opportunities become available, Carpi & Clay will review and alert the City to relevant opportunities. Should the City elect to pursue these opportunities, Carpi & Deliverable Clay will support these efforts through an extensive campaign -like response involving grant document review, generating letters of support, and building a network of advocates in Washington. Notices of Funding Availability (NO FA) or Notices of Funding Schedule Opportunities (NOFO) are published throughout the year. Carpi & Clay will track these opportunities in the Federal Register and through conversations with agency officials. Carpi & Clay Page 15 8-19 IV. Task Prepare relevant appropriations requests for the FY19 budget process. Taking into account relevant committee factors and political Deliverable pressure points, Carpi & Clay will develop bill and/or report language For the FY19 appropriations bills. Bill and report language will need to be developed and Schedule submitted prior to mid-February 2018. The schedule for such projects will be dictated by Congress, but any such opportunities will likely take place in the first quarter. V. Task Assist with any delegation trips to Washington involving City members or issues. Carpi & Clay will support advocacy efforts of local groups such as the U.S. Conference of Mayors, local chambers of Deliverable commerce, etc. that travel to Washington. We have a great appreciation for leveraging your priorities through the voices of your regional stakeholders. Schedule Late winter/early spring. Vi. Task Provide real-time Washington updates. Carpi & Clay has the resources and network to provide the City with real-time developments on priority issues and Deliverable political developments. From tracking the Corps' regulatory process to sharing behind -the -scenes, insider discussions, the City will have full access to our insights. Schedule Ongoing. Actively lobby the Congress, White House and federal VII. Task department/ agency officials in support of City projects and priorities. As your extended office in Washington, we'll start our days Deliverable with your priorities on our front burner. Our definition of full-service representation" is working on your behalf at every opportunity. Schedule Ongoing. VIII. Task Actively work with local government associations and attend strategic organizations' meetings. Deliverable Recognizing that coalition efforts can help to drive success, we will represent you within local government associations. Carpi & Clay Page 16 8-20 Carpi & Clay Pave 17 8-21 Be it the U.S. Conference of Mayors, the National Association of Counties, NAFSMA, or any other key organization, we will leverage their political will and resources to advance your policy and regulatory priorities. We will also tap into their networking potential to build smaller coalitions of like- minded agencies on issues that matter to you, but that may not be at the forefront of the government association agendas. Schedule Ongoing. IX. Task Monitor agency activity. It is important to track the pulse of activity within key agencies. Utilizing both public resources and internal Deliverable meetings, we are able to advance our clients' agendas and learn of agency decisions and rule makings before they happen. Schedule Ongoing. X. Task Arrange for federal site visits to the City projects. We will look to create educational opportunities for congressional staff and agency officials by inviting them to Deliverable visit the City. Washington -based officials appreciate the opportunity to see the projects they have been working on firsthand. It also creates an opportunity for you to showcase your accomplishments and build stronger relationships. Informal requests will be made during the City's visit to Schedule Washington, and we will work with targeted officials to identify times for a visit. Spring recess in April and August recess are good opportunities for this type of event. XI. Task Ensure that past federal Funding is obligated and resolve any regulatory hurdles to projects already under way. We recognize that once federal funding is secured, there can be some administrative hurdles. We will work with you to review all past federal funding to: 1) ensure that resources have been used for their intended purpose; and 2) resolve any Deliverable administrative issues. This is not only important to advancing priority projects, but to your ongoing messaging to your congressional delegation. Federal resources are highly competitive and congressional offices and agency officials are more likely to assist those entities that have been good stewards of federal funds. Carpi & Clay Pave 17 8-21 Carpi & Clay Page 18 ,3y Schedule Ongoing. XIV. Task Advocate for City projects. Carpi & Clay utilizes legislative tracking resources as well as a "boots on the ground" approach to ensure that the City will be the first to know when relevant legislation is introduced as well as changes in the agency arena. We will also analyze Deliverables these bills/changes to provide the City with an assessment of the potential benefits or impacts. As desired, we will work with the City to develop an advocacy and communications plan to educate agency officials and congressional stakeholders. Schedule Ongoing. XV. Task Reporting of unanticipated policy issues. We recognize the importance of building in flexibility to any Deliverables federal strategy. As new issues emerge we will analyze the opportunities and challenges and make recommendations to the City. Schedule Ongoing. Carpi & Clay Page 18 ,3y EXHIBIT B SCHEDULE OF BILLING RATES Consultant shall bill City a monthly fixed fee of $4,700 per month. This monthly fee includes all overhead costs and up to one trip per year to the City by the Project Manager. Carpi & Clay, Inc. Page B-1 8.23 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Carpi & Clay, Inc. Page C-1 8.24 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Carpi & Clay, Inc. Page C-2 8-25 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own Carpi & Clay, Inc. Page C-3 8-26 judgment may be necessary for its proper protection and prosecution of the Work. Carpi & Clay, Inc. Page C-4 8.27 ATTACHMENT B City of Newport Beach BUDGET AMENDMENT 2017-18 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues X from unappropriated fund balance EXPLANATION: NO. BA- 18BA-026 AMOUNT:j $141,000.00 This budget amendment is requested to provide for the following: To transfer expenditure appropriations from the General Plan Update CIP to the operating budget to provide for a professional services agreement for federal advocacy services related to harbor dredging efforts and programs. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Object Description REVENUE ESTIMATES Orq Object Description EXPENDITURE APPROPRIATIONS Amount Debit Credit Description Org/Object 01201928-980000-18M12 General Fund CIP - General Plan Update $141,000.00 Org/Object 01080005-811008 Public Works Admin - Professional Services Org/Object Org/Object %VOK �t Signed: Financial Approval: Finance Director Signed Admin 've Approval: City Man Automatic System $141,000.00 2jai14 Date Date Signed: City Council Approval: City Clerk Date 8-28 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance ONE-TIME? F-il Yes No This budget amendment is requested to provide for the following: To transfer expenditure appropriations from the General Plan Update CIP to the operating budget to provide for a professional services agreement for federal advocacy services related to harbor dredging efforts and programs. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Object Description REVENUE ESTIMATES Orq Object Description EXPENDITURE APPROPRIATIONS Amount Debit Credit Description Org/Object 01201928-980000-18M12 General Fund CIP - General Plan Update $141,000.00 Org/Object 01080005-811008 Public Works Admin - Professional Services Org/Object Org/Object %VOK �t Signed: Financial Approval: Finance Director Signed Admin 've Approval: City Man Automatic System $141,000.00 2jai14 Date Date Signed: City Council Approval: City Clerk Date 8-28