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HomeMy WebLinkAbout19 - Interim Marina Management Services at Balboa Yacht BasinCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 19 September 14, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Chris Miller, Harbor Resources Manager (949) 644 -3043, cmiller @newportbeachca.gov SUBJECT: PROFESSIONAL SERVICES AGREEMENT FOR INTERIM MARINA MANAGEMENT SERVICES AT THE BALBOA YACHT BASIN WITH BASIN MARINE, INC. ISSUE: Staff is recommending a new contract with Basin Marine, Inc. to extend management of the Balboa Yacht Basin marina on an interim basis until a formal RFP can be completed. RECOMMENDATIONS: 1. Approve the Professional Services Agreement ( "PSA ") with Basin Marine, Inc. to manage the Balboa Yacht Basin on an interim basis; 2. Approve Budget Amendment No. 11 BA- appropriating $28,000 from unappropriated reserves (Tidelands) to account #2371 -8080 Professional and Technical Services; and 3. Waive the requirement in Council Policy F -14 for the City to contact at least three qualified consultants for proposals. DISCUSSION: On January 31, 2010, the Balboa Yacht Basin's (BYB) Marina Manager, City employee Lorrie Arcese, retired as part of the City's ERIP program. In order to maintain a high degree of customer service without any disruptions, the City hired Basin Marine to manage the BYB for a period of five months. Since Basin Marine has been located at the BYB for over fifty years and because they are intimately familiar with the client base and inner workings of the marina, the City felt they were an ideal match to manage the BYB on an interim basis while a formal RFP was generated for long term BYB management. Basin Marine PSA for Interim BYB Management September 14, 2010 Page 2 Harbor Resources was unable to formulate an RFP for long term management during this time period, so staff is requesting a new contract with Basin Marine for a second interim period from July 1, 2010 to January 31, 2011. However, it is the City's intention to finalize the RFP process for long term BYB management before the end of the year. In fact, the RFP has already been released to the public and proposals are due September 15, 2010. (httr)://www.newportbeachca.gov/index.aspx?page=1 616). Staff is also requesting Council to waive the requirement in Council Policy F -14 for the City to contact at least three qualified consultants for proposals. Since Basin Marine has already been successfully managing the BYB for this period, and since the formal RFP for long term management has already been released to the public therefore indirectly satisfying the intent for open competition, staff felt it would be a disservice to potential consultants to entertain bids for such a short period of time. In addition, the learning curve for a new consultant to become familiar with the marina would require time therefore affecting the customer service at the BYB. For these reasons, it is most efficient to continue receiving services from Basin Marine for these next few months while the formal RFP is underway. Scope of Services Basin Marine proposes to maintain the same level of service as previously provided for the same rate of $28,000 ($4,000 /month for 7 months). The scope of service includes: • Provide services Monday through Friday, 8 -4:30. • Daily marina walk through to check docks, garages and parking lots to ensure safety, quality and cleanliness. • Ensure dock carts are in order. • Maintain trash bins and insure no hazardous materials are present. • Inspect heads daily to ensure cleanliness (no janitorial service). • Provide customer service to tenants (answer questions etc... ) • Maintain wait list for slips and garages. • Accept slip rental applications and deposits. • Direct outside contractors (electrical, plumbing etc...) for routine maintenance and repair. ENVIRONMENTAL REVIEW: The approval of the Professional Services Agreement for BYB management does not require environmental review. PUBLIC NOTICE: This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Basin Marine PSA for Interim BYB Management September 14, 2010 Page 3 FUNDING AVAILABILITY: The contract requires a Budget Amendment of $28,000 for the attached Scope of Work from Unappropriated Reserves (Tidelands) to account #7231 -8080 Professional and Technical Services. Submitted by: V /A IA Chris Miller Harbor Resources Manager )heDZ. Badum lic Works Director Attachments: 1. Map 2. Basin Marine Professional Services Agreement Basin Marine PSA for Interim BYB Management September 14, 2010 Page 4 Attachment 1 Map PROFESSIONAL SERVICES AGREEMENT WITH BASIN MARINE, INC. FOR INTERIM BALBOA YACHT BASIN MANAGEMENT THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement') is made and entered into as of this day of , 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and BASIN MARINE, INC. a California company whose address is 829 Harbor Island Drive, California, 92660 ( "Consultant'), 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. The Balboa Yacht Basin has been historically managed by City staff. As a result of the Council adopted Organization Restructuring Program and the Early Retirement Incentive Program, the Balboa Yacht Basin Marina Manager retired on Friday January 29, 2010, and the future marina management duties will be contracted out. C. The City Manager may authorize and approve interim appointments to fill permanent vacant positions. D. City desires to engage Consultant to manage the Balboa Yacht Basin on an interim basis ( "Project'). E. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. F. The principal member[s] of Consultant for purposes of Project, shall be Dave New. G. 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: 1. TERM The term of this Agreement shall commence on July 1, 2010, and shall terminate on the 31 st day of January, 2011, 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 ( "Work" or "Services "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 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. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates 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 Twenty -Eight Thousand Dollars and no /100 ($28,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. Professional Services Agreement Page 2 C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 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. 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 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 DAVID NEW 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. 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. If Consultant is performing inspection or construction management services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. Consultant's cellular phone number will be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Harbor Resources Division. CHRIS MILLER, HARBOR RESOURCES MANAGER, or his /her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such Professional Services Agreement Page 3 materials in a timely manner so as not to cause delays in Consultant's Work schedule. B. Provide blueprinting and other Services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 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. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in 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, 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, contractors, or governmental agencies. employees, or of any other persons performing portions of the Work. 9. HOLD HARMLESS 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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner Professional Services Agreement Page 4 relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's 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 the 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. 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 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 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 and /or his /her duly authorized designee 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 Professional Services Agreement Page 5 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. A. Proof 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. 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 contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. C. Coverage Requirements Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. Professional Services Agreement Page 6 ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the 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 for each accident. iv. Professional Liability (Errors & Omissions) Coverage. 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) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements The policies are to contain, or be endorsed to contain, the following provisions: i. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers 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 and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. 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. Professional Services Agreement Page 7 iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. 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. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 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 or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, 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. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the Work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (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. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 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 Professional Services Agreement Page 8 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. 18. COMPUTER DELIVERABLES Intentionally omitted. 19. 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 authorizes in writing the release of information. 20. OPINION OF COST Intentionally Omitted 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the Work 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. 23. 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 his /her designee with respect to such Professional Services Agreement Page 9 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. 24. 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 paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project 26. CONFLICTS OF INTEREST The 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. 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. 27. NOTICES All notices, demands, requests or approvals 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Chris Miller Harbor Resources Division City of Newport Beach 829 Harbor Island Drive Newport Beach, CA 92660 Phone: 949 - 644 -3043 Fax: 949 - 723 -0589 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Professional Services Agreement Page 10 Attention: David New Basin Marine, Inc. 829 Harbor Island Drive Newport Beach, Ca 92660 Phone: 949 - 673 -0360 Fax: 949 - 673 -0625 28. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 29. TERMINATION 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. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving 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. 30. 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. 31. 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 Professional Services Agreement Page 11 other term, covenant or condition contained herein, whether of the same or a different character. 32. 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. 33. 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. 34. 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. 35. 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. 36. 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. 37. CONTROLLING 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. 38. 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 of race, religion, color, national origin, handicap, ancestry, sex or age. Professional Services Agreement Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFALe O��HE CIJY ATTORNEY: i n ie Mulvihill t Assistant City Attorney 1t %�io ATTEST: Leilani Brown, City Clerk Attachments 8.30.10 CITY OF NEWPORT BEACH, A Municipal Corporation M Keith Curry Mayor CONTRACTOR: Basin Marine, Inc. M Title: President Print Name: in Title: Vice President Print Name: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Professional Services Agreement Page 13 July 1, 2010 Mr. Chris Miller Harbor Resources City of Newport Beach Dear Chris: This is a general proposal for Basin Marine, Inc., to become the `Dockmaster' for the Balboa Yacht Basin. The duties below are what I believe the current dockmaster job description is and they are as follows: • Provide services Monday thru Friday. Hours would be 8 to 4:30. • Do a daily walk thru the docks, garages, parking lot and grounds to ensure safety , quality and cleanliness and make any recommendations to your staff • Keeping dock carts in neat order • Checking trash bins for proper trash, insuring no hazardous materials, etc. • Read electrical meters and provide the City with that report monthly on a specified date • Inspect heads daily to ensure cleanliness( does not include janitorial service) • Liaison between current slip renters and provide necessary answers to their questions • Keep an updated waiting list for slips and garages • Accept slip rental applications and deposits • City to provide current phone line of dockmaster to our main office, Basin will provide an emergency phone number for after hour emergencies • City to receive mail • City to do invoicing for slips and garages • City to provide monthly A/R list to Basin to prevent delinquencies City to provide their preferred vendor list for outside services such as gardener and janitorial services and others and discuss what credit limit Basin would have in emergency cases such as broken waterlines. Terms & Conditions on Reverse Page Two Chris Miller • City to provide client list and discuss the possibility of Basin using City's software if applicable for tenant information • Basin to do walk thru with mist agencies such as Fire Department I feel that a monthly fee paid to Basin Marine by the City of Newport Beach to bean amount of $ 4000.00. This is for the period of Julyl, 2010 thru January 31, 2011 Chris, I am looking forward to discuss this in further detail and would appreciate any questions or comments you might have. Sincerely, President L— Exhibit B Office staff field calls $ 75.00 per day = $ 1500 /mo 1. Customer service for prospective /current slip renters Dave and Derek New = $1500.00 /mo 2. Daily inspections (docks, restrooms parking lots and some maintenance duties) $ 50.00 /day = $1000.00 3. Emergency type situations beyond Scope of Service $80.00 per hour City of Newport Beach BUDGET AMENDMENT 2010 -11 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 PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 11 BA -008 AMOUNT: $28,000.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase expenditure appropriations from the Tidelands Fund unappropriated fund balance to cover the cost of a contract with Basin Marine Inc. to extend management of the Balboa Yacht Basin marina on an iterim basis. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 230 3605 REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Amount Description Debit _ Tidelands Fund - Fund Balance $28,000.00 Description Description 7231 Tidelands 8080 Services: Professional & Technical NOC Automatic Signed: Financial Signed: —� Administr Signed: Administrative Services Director Approval: City City Council Approval: City Clerk Credit $28,000.00 . (• /b Date 1106 Date Date