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HomeMy WebLinkAbout12 - AB 2464 (Harper)Q SEW Pp�T CITY OF �m z NEWPORT BEACH c�<,FORN'P City Council Staff Report March 27, 2018 Agenda Item No. 12 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager - 949-644-3001, dkiff _newportbeachca.gov PREPARED BY: Dave Kiff, City Manager TITLE: AB 2464 (Harper), Professional Services Agreement with Schmitz and Associates, Budget Amendment ABSTRACT - This item is back on the Agenda following a discussion on March 20, 2018 between me and Council Members Dixon and Peotter, along with contacts with Don Schmitz. That discussion led to the recommended actions presented below. 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) Authorize the Mayor to send a letter to Assembly Member Matthew Harper in support of AB 2464 or a similar Harper bill; c) Authorize the City Manager to execute a Professional Services Agreement with Schmitz and Associates, including work with Henschel Government Affairs, with a not - to -exceed amount of $120,000; d) Identify Council Member Dixon and Council Member Peotter as the contacts to work with staff and Mr. Schmitz and Mr. Henschel on this issue as it progresses forward; and e) Approve Budget Amendment 18BA-032 in the amount of $120,000 from the General Plan Update CIP, 01201928-980000-18M12, to the City Council Professional Services budget, 01005005-811008. 12-1 AB 2464, Port Master Plan Update and More March 27, 2018 Page 2 FUNDING REQUIREMENTS: The proposed Budget Amendment for FY 2017-18 would allow up to $120,000 to be spent in this regard (generally set at $16,000 per month plus incidental and travel costs from Schmitz and Henschel). Should the bill be passed into law, the City would have to undertake a fairly extensive planning effort to develop a Port Master Plan. While this will involve additional City expense, it likely will save an undetermined amount of money for our residents and businesses (and possibly the City) should the Port Master Plan be approved by the Coastal Commission. DISCUSSION: In recent years, Council members have discussed the concept of a "Port Master Plan" for Newport Harbor, that would be akin to a Local Coastal Program (LCP) for the waters of Newport Harbor. With an LCP, a local community's governing board steps into the shoes of the California Coastal Commission in interpreting the Coastal Act, allowing local residents to avoid following the Commission across the state at its monthly meetings to secure a permit. In effect, having a Port Master Plan would allow the City Council and City staff to process environmental review and permits for modifications, removals, and installations of items like sea walls, private and public docks, mooring cans, swim lines, and more — assuming all of this occurred consistent with the California Coastal Act. Additionally, it would allow the City Council to more effectively manage small dredging projects, especially around private piers. Starting with the Council's planning session on Monday, January 29th, 2018, and then at the Council's evening meeting of Tuesday, February 13, 2018, the Council gave direction to have legislation introduced that would create the Port Master Plan concept in state law. Assembly Member Matthew Harper agreed to introduce the legislation, which is now Assembly Bill 2464 (Harper, with CA Senator John Moorlach as co-author). AB 2464 as introduced is Attachment A. AB 2464 would essentially align Newport Beach's harbor with other significant harbors, calling out our harbor as a harbor able to have its own Port Master Plan. If the bill become law, the City would then have to develop and submit the Port Master Plan to the Coastal Commission for review and approval, similar to the City's extensive Local Coastal Program effort. It is likely that developing and submitting a Port Master Plan may take a significant amount of time should AB 2464 became law. Don Schmitz of Schmitz and Associates has been a long-term contractor to the City on advocacy before the Coastal Commission and to Coastal staff. Mr. Schmitz has partnered in the past with Sean Henschel of Henschel Government Affairs to communicate with state legislators and the Governor's office. 12-2 AB 2464, Port Master Plan Update and More March 27, 2018 Page 3 As noted to you on March 13, 2018, a sole -sourced contract to Schmitz and Associates (working with Henschel Government Affairs) is proposed. Mr. Schmitz has a significant history of working with our city on past key Coastal issues, including Marina Park, Sunset Ridge Park, our Local Coastal Program, and more. Therefore, a sole -sourced effort here may be appropriate. The billing rate collectively (for Schmitz and Henschel) is $16,000 per month, not including other expenses (such as travel and incidentals). The contract envisions a not -to -exceed amount of $120,000, including a payment of $32,000 upon execution. See Attachment B for the proposed professional services agreement. A budget amendment would be required to cover these costs (see Attachment C). It is challenging to know if AB 2464 will be successful immediately or if this second year of the Legislature's 2017-2018 session will be a discussion, education, and learning year for us and the Legislature and Commission about this important local need. Either way, we are appreciative of Assembly Member Harper's interest in sponsoring AB 2464 for the City and the harbor. ENVIRONMENTAL REVIEW: Staff recommends the City Council find that 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 the adoption of City Council Policy A-3 has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This agenda item was noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Text of AB 2464 (Harper, 2017) Attachment B — Proposed Professional Services Agreement with Schmitz and Associates Attachment C — Budget Amendment No. 18BA-032 12-3 ASSEMBLY BILL ATTACHMENT A No. 2464 Introduced by Assembly Member Harper (Coauthor: Senator Moorlach) February 14, 2018 An act to amend Section 30700 of the Public Resources Code, relating to ports. LEGISLATIVE COUNSEL'S DIGEST AB 2464, as introduced, Harper. California Coastal Act of 1976: Port of Newport Beach. The California Coastal Act of 1976 establishes the California Coastal Commission and prescribes the membership, and functions, and duties of the commission with regard to the regulation and protection of coastal resources. The act specifies that after a port master plan for the port of Hueneme, Long Beach, Los Angeles, or San Diego Unified Port District located within the coastal zone, as provided, is certified by the commission, the permit authority of the commission is thereafter delegated to the appropriate port governing body, except as specified. Existing law requires certain cities and counties to incorporate the master plan in its local coastal program. This bill would additionally apply this port master plan provision to the Port of Newport Beach located within the coastal zone, except as provided. By imposing duties on local officials, this bill would impose a state -mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above. DIGEST KEY Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES 12-4 BILL TEXT THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 30700 of the Public Resources Code is amended to read: 30700. For purposes of this division, notwithstanding any other provisions of this division except as specifically stated in this chapter, this chapter shall govern those portions of the Ports of Hueneme, Long Beach, Los Angeles, Newport Beach, and San Diego Unified Port District located within the coastal zone, but excluding any wetland, estuary, or existing recreation area indicated in Part IV of the coastal plan. SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. 12-5 ATTACHMENT B PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES FOR ADVOCACY FOR NEWPORT HARBOR PORT MASTER PLAN THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 27th day of March, 2018 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SCHMITZ & ASSOCIATES, a California corporation ("Consultant"), whose address is 28118 Agoura Road, Suite 103, Agoura Hills, California 91301, 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 advocate on City's behalf before the California Coastal Commission and California State Legislature regarding Assembly Bill ("AB") 2464 (Harper), which relates to establishing a Port Master Plan for Newport Harbor ("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: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on July 31, 2018, 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. 12-6 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 forfh 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 a fixed fee 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 One Hundred Twenty Thousand Dollars and 00/100 ($120,000.00), 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. 4.2 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 Schmitz & Associates Page 2 12-7 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 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 Donald W. Schmitz 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 City Manager's Office. City Manager 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 Schmitz & Associates Page 3 12-8 requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. 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 Schmitz & Associates Page 4 12-9 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 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 or joint 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. Schmitz & Associates Page 5 12-10 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. Schmitz & Associates Page 6 12-11 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. Schmitz & Associates Page 7 12-12 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: City Manager City Manager's Office 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: Donald W. Schmitz Schmitz & Associates 28118 Agoura Rd., Suite 103 Agoura Hills, CA 91301 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 Schmitz & Associates Page 8 12-13 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. Schmitz & Associates Page 9 12-14 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 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, 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] Schmitz & Associates Page 10 12-15 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: 22 By: Aa . Harp City Attorney ATTEST: Date.- By: ate:By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Dave Kiff City Manager CONSULTANT: Schmitz & Associates, a California corporation Date: By: Donald W. Schmitz President and Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Schmitz & Associates Page 11 12-16 EXHIBIT A SCOPE OF SERVICES Consultant shall advocate before California Coastal Commission staff and members regarding AB 2464 (Harper), which relates to establishing a Port Master Plan for Newport Harbor. Such advocacy services include, but are not limited to, meetings, calls, and emails with staff and members. Consultant shall advocate before members of the California State Legislature regarding AB 2464 (Harper). Such advocacy services may be performed through Sean Henschel of Henschel Government Affairs ("HGA") and shall include, but are not limited to, meetings, calls, emails with Legislators and legislative staff, including committee staff, as well as with the Governor's Office and the California Coastal Commission's legislative advocate. Consultant shall be responsible for filing on the City's behalf all forms required of the City as a result of services performed by Consultant and HGA including, but not limited to, registration forms, authorization statements, and periodic activity reports with the Secretary of State, the FPPC, and any other regulatory body, provided the City responds in a timely way to Consultant's requests for form approvals, information, signatures, and other requested information. Schmitz & Associates Page A-1 12-17 EXHIBIT B SCHEDULE OF BILLING RATES Upon execution of the Agreement, Consultant shall be paid Thirty-two Thousand Dollars and 00/100 ($32,000.00). In addition, Consultant shall be paid the sum of Sixteen Thousand Dollars and 00/100 ($16,000.00) monthly for the term of the Agreement. Consultant shall be paid for reimbursable expenses during the term of the Agreement, upon written approval of City's Project Administrator. The total compensation to Consultant under the Agreement shall not exceed One Hundred Twenty Thousand Dollars and 00/100 ($120,000.00). Schmitz & Associates Page B-1 12-18 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. Schmitz & Associates Page C-1 12-19 0 5 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. 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. 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. Schmitz & Associates Page C-2 12-20 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 judgment may be necessary for its proper protection and prosecution of the Work. Schmitz & Associates Page C-3 12-21 City of Newport Beach BUDGET AMENDMENT 2017-18 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase Expenditure Appropriations AND X Transfer Budget Appropriations SOURCE: X from existing budget appropriations from additional estimated revenues from unappropriated fund balance EXPLANATION: ATTACHMENT C NO. BA- 18BA-032 AMOUNT:1 $120,000.00 This budget amendment is requested to provide for the following: To transfer appropriations from the General Fund General Plan Update Project to the City Manager's operating budget to provide advocacy services related to AB 2464. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Object REVENUE ESTIMATES Description Amount Debit Credit Orq Object Increase in Budgetary Fund Balance 01099 691012 Decrease in Budgetary Fund Balance X No effect on Budgetary Fund Balance ONE-TIME? B Yes Org/Object 01201928 No This budget amendment is requested to provide for the following: To transfer appropriations from the General Fund General Plan Update Project to the City Manager's operating budget to provide advocacy services related to AB 2464. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Object REVENUE ESTIMATES Description Amount Debit Credit Orq Object Description 01099 691012 Gen Fund -Transfer In From Gen Fund CIP $120,000.00 EXPENDITURE APPROPRIATIONS Description Org/Object 01201928 980000 General Fund CIP - General Plan Update $120,000.00 18M 12 -Unassigned -012 -Unassigned Org/Object 01299 991010 General Fund CIP - Transfer Out $120,000.00 Org/Object 01050005 811008 City Council - Professional Services $120,000.00 Org/Object Signed: Signed: Signed: Fihancial Approval: FinW_Director AdministrAve Approval: City M ager City Council Approval: City Clerk Automatic Date Date Date 12-22 Nelson, Jennifer From: Oborny, Shirley Sent: Wednesday, May 02, 2018 7:41 AM To: Nelson, Jennifer; Muldoon, Kevin; Rieff, Kim; Finnigan, Tara Subject: FW: AB 1196 Harper letter from Will O'Neill Please see Dave Kiff's response below. E From: Kiff, Dave Sent: Tuesday, May 01, 2018 8:34 PM To: Oborny, Shirley <soborny@newportbeachca.gov> Subject: Re: AB 1196 Harper letter from Will O'Neill No. Bill is dead. Sent from my Pad On May 1, 2018, at 5:41 PM, Oborny, Shirley <sobornv@newportbeachca.gov> wrote: Will there be a letter? EM From: Nelson, Jennifer Sent: Monday, April 09, 2018 10:10 AM To: Oborny, Shirley <sobornv@newportbeachca.gov> Cc: Mulvey, Jennifer <JMulvey@newportbeachca.gov>; Rieff, Kim <KRieff@newportbeachca.gov>; Finnigan, Tara <TFinnigan@newportbeachca.gov> Subject: AB 1196 Harper letter from Will O'Neill Hello Shirley, I am doing Council meeting follow up and see we have not received this letter from your office. Can you please give me the status on when that will be completed, and if it has been, can you please send us a copy for the packet/LF? For additional reference —This was Item 12 on the 3/27/18 meeting. Will must sign as Duffy had to recuse and the bill was incorrect on the Staff Report and should be AB 1196 not 2464. Thank you, Jennifer Nelson Assistant City Clerk City of Newport Beach 100 Civic Center Drive, Newport Beach, CA 92660 949-644-3006 inelsonrd,,newportbeachca.gov <image003.png>