HomeMy WebLinkAboutC-5913 - PSA for Coastal Representation of the Proposed Eelgrass Protection and Mitigation Plan10,
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AMENDMENT NO. TWO TO
PROFESSIONAL SERVICES AGREEMENT
WITH SCHMITZ & ASSOCIATES, INC. FOR
COASTAL REPRESENTATION OF THE PROPOSED EELGRASS PROTECTION
AND MITIGATION PLAN
THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. Two") is made and entered into as of this 26th day of November,
2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and SCHMITZ & ASSOCIATES, INC., a
California corporation ("Consultant"), whose address is 29350 Pacific Coast Highway,
Suite 12, Malibu, California 90265, and is made with reference to the following:
RECITALS
A. On June 30, 2014, City and Consultant entered into a Professional Services
Agreement ("Agreement") to engage Consultant to provide California Coastal
Commission application support services for the City's proposed Eelgrass
Protection and Mitigation Plan ("Project").
B. On May 15, 2015, City and Consultant entered into Amendment No. One to the
Agreement ("Amendment No. One") to reflect additional services not previously
included in the Agreement, and to increase the total compensation.
C. City desires to enter into this Amendment No. Two to reflect additional Services
not included in the Agreement, as amended, and to increase the total
compensation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. SERVICES TO BE PERFORMED
Exhibit A to the Agreement shall be supplemented to include the Scope of
Services, attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Exhibit A to the Agreement, Exhibit A to Amendment No. One, and Exhibit A
to this Amendment No. Two shall collectively be known as "Exhibit A." The City may
elect to delete certain Services within the Scope of Services at its sole discretion.
2. COMPENSATION TO CONSULTANT
Exhibit B to the Agreement shall be supplemented to include the Schedule of
Billing Rates, attached hereto as Exhibit B and incorporated herein by reference
("Services" or "Work"). Exhibit B to the Agreement, Exhibit B to Amendment No. One
and Exhibit B to Amendment No. Two shall collectively be known as "Exhibit B."
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "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 One Hundred
Eighteen Thousand One Hundred Three Dollars and 851100 ($118,103.85), 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."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. Two,
including all reimbursable items and subconsultant fees, in an amount not to exceed
Eleven Thousand Seven Hundred Thirty Four Dollars and 35/100 ($11,734.35).
3. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Schmitz & Associates, Inc. Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: I1
By:
Aaron C. arp 0I'M %Nh-q«
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
sc1 Fop -!:d
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: v?4:1 I
By:�
Dave Kifr
City Manager
CONSULTANT: Schmitz & Associates,
Inc., a California corporation
Date:
By: Signed in Counterpart
Donald W. Schmitz II, AICP
Chief Executive Officer and Chief
Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Schmitz & Associates, Inc. Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICI
2�� I - c
Aaron C—Harp (kM ,�izUr
City Attorney
ATTEST:
Date:
In
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Dave Kiff
City Manager
CONSULTANT: Schmitz & Associates,
Inc., a California corporation
Date: r 1i � 9 y j golz
�— -I
C
By:
Donald W. Schmitz II, AICP
Chief Executive Officer and Chief
Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
CNB Pu':�',ic Warks
Now 2 5 2015
Receove_d
Schmitz & Associates, Inc. Page 3
EXHIBIT A
SCOPE OF SERVICES
Schmitz & Associates, Inc. Page A-1
October 6th, 2015
City of Newport Beach
Attn: Dave Kiff, City Mgr.
Attn: Chris Miller, Harbor Resources Mgr.
100 Civic Center Drive
Newport Beach, CA 92660
SENT VIA EMAIL CORRESPONDENCE & US MAIL
Re: Newport Beach Amendment to Scope of Services & Budget
Mssrs. Kiff and Miller:
Our firm was retained by the City of Newport Beach to provide land use and Coastal Commission
Consulting services to assist the City in obtaining the Coastal Development Permit needed to implement
the Regional General Permit (RGP) for annual dredging activities in Lower Newport Harbor.
Our office has been actively engaged in carrying out the work scope agreed to in our services agreement
with the City. At this time we have completed phases I thru IV of said agreement and have obtained the
requisite approvals from the California Coastal Commission.
The purpose of this correspondence is to request approval from the City Manager to expand our work
scope and contract amount in contemplation of additional work ("Extra Work") that is required of our
firm to successfully complete our work and facilitate the entitlements.
Our original agreement and one supplemental amendment with the City specified that we would provide
land use consulting and permit processing services (as listed) on a time and materials basis in an amount
not to exceed $106,369.50. Lobbying, preparation for, and attendance at the Coastal Commission
hearing took more time than expected due to various reasons. These reasons include, but are not limited
to the coastal commission staff, whom shortly before the hearing, requiring mitigation of natural
fluctuations of the Eel Grass Beds in the harbor. This would have exposed the city to a potentially
massive and unacceptable financial liability.
Additionally, there is remaining condition compliance work to be completed and we need to obtain the
actual permits. Last, there will be a limited amount of time required for addressing and responding to
the Army Corp's concerns.
MAC1811 FIC - HFADQUARTFRS CONFJOVAUFYOFRCF - RFGI0RIA,1
SCHMITZ &ASSOCIATES INC 74350 PACIFIC CCAS' HIGHWAY SUITE 12 5234 CHESEBRC ROAD SUITE 200
MALIBU, CA 40265 AGOURA HILLS, CA 9030)
PROVIDERS OF LAND USE PLANNING MAIN: 310.589.0773 FAX: 310.589.0353 MAIN: 878.338.3636 FAX. R 18.338.1342:1
FOR A BETTER COMMUNITY EMAIL:INFOOSCHMITZ.ANL)ASSOCIATES.NET WEBSITE:WWW.SCHMITZANDASSOCIATES. CC
Pursuant to previous discussions with Mr. Miller and City Staff we are requesting that our scope of work
and contract amount be augmented to address the additional work required in accordance with Paragraph
4 of our Agreement.
The following is a summary of the services yet to be performed and the additional contract amount
which we are requesting authorization for:
MODIFIED WORK SCOPE AND CONTRACT AMOUNT
Original Budget for scope of services = T&M NTE $71,250
Amendment #1, 7.17.2015 = T&M NTE $106,369.50
Total Billing to date (as of 7.22.15) = $106,103.85
Amount remaining in current Budget + $265.65 (CR)
Remaining Work to be Completed as of July 23rd 2015
• Ongoing CCC Condition Compliance and Acquisition of Permits: $6,000.00 to $8,000.00
• Ongoing Coordination & Meetings with Army Coros• $2,000.00 to $4,000.00
Total Budget for Remaining Work = Range between $8,000.00 - $12,000.00
[$12,000.00 (high end) - $265.65 (Credited amt. remaining in budget)= $11,734.35 Increase in budget
needed.
Amendment to Existing Services Agreement to Increase Payment NTE Limit for Services Rendered
from $106,369,50 to $118,103.85
Please don't hesitate to contact us with any questions or comments that you might have regarding this
request or hearing preparations in general.
Sincerely,
Donald W. Schmitz II / President / A LC.P
MALlBU OFFICE - HEADQUARTERS CONEJO VALLEYOFFIGE - REC3tCJNA.
SCHMITZ $ASSOCIATES INC 29350 PACIFIC C JASI HIGHWAY SUITE 12 5'234 CHESEBPO ROAD SUTU 200
MALlBU, CA 90265 AGOURA HILLS. CA 90301
PROVIDERS OF LAND USE PLANNING MAIN: 3:0.589;1773 FAX: 310.589.0353 MAIN: 818.338.3636 FAX: 818.338.3423
FOR A BETTER COMMUNITY EMAI L:INFC@SCH MaZANOASSOCI ATES, NET WEBSI(E:WWW SCHMITZANDASSCCfATES.CC
Headquarters:
29350 West Pacific Coast Highway, Suite 12
Malibu, CA 90265
Coll: (310) 617-0773 1 Office: (310) 589-0773 1 Fax: (310) 589-0353
Conejo Valley Office:
5234 Chesebro, Road, Suite 200
Agoura Hills, CA 91301
Cell: (310) 617-0773 1 Office: (818) 338-3636 1 Fax: (818) 338-3423
DonS@schmitzandassociates.net I www.schmitzandassociates.coml www,facebook.com
SCHMITZ & ASSOCIATES, INC 24361.; PACIA"' COAST HIGHWAY SWTE 12 5234 CiiESEBRO ROAD SUITE 200
MIAUBU, CA 90265 AGWIPA HLB, CA W301
PROVIDERS OF LAND USE PLANNING M.AW 310589"0?73 FAX: 310.589.0353 MAIN; 818.3v5.3b3b FAX: 818.13&,1423
FOR A RETTER COMMUNITY EtAAiL:INFO�aSt:FtMIIZANDA6zSOCIATES,NET WLt3SIIE:WWW.SCtiMiTZANDASSCsCiA'ES.CC
EXHIBIT B
SCHEDULE OF BILLING RATES
Schmitz & Associates, Inc. Page B-1
W4:Il]li?
SCHEDULE OF BILLING RATES
AMENDMENT NO. TWO— COASTAL REPRESENTATION FOR PROPOSED EELGRASS PROTECTION AND
MITIGATION PLAN
In order to continue to assist the City in obtaining the Coastal Development Permit needed to implement
the Regional General Permit (RGP) for annual dredging activities in Lower Newport Harbor, the following
services and fees are added:
• Ongoing California Coastal Commission Compliance and Acquisition of Permits:
• Ongoing Coordination & Meetings with Army Corps:
- $4,000.00
Subtotal:
$12,000.00
Credited amount remaining in budget: -$265.65.00
TOTAL: $11,734.35
AMENDMENT NO. ONE TO
V PROFESSIONAL SERVICES AGREEMENT
WITH SCHMITZ & ASSOCIATES, INC. FOR
COASTAL REPRESENTATION OF THE PROPOSED EELGRASS PROTECTION
AND MITIGATION PLAN
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. One") is made and entered into as of this 15th day of May, 2015
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City'), and SCHMITZ & ASSOCIATES, INC., a
California corporation ("Consultant"), whose address is 29350 Pacific Coast Highway,
Suite 12, Malibu, California 90265, and is made with reference to the following:
RECITALS
A. On June 30, 2014, City and Consultant entered into a Professional Services
Agreement ("Agreement") to provide California Coastal Commission application
support services for the City's proposed Eelgrass Protection and Mitigation Plan
("Project").
B. City desires to enter into this Amendment No. One to reflect additional Services
not included in the Agreement and to increase the total compensation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. SERVICES TO BE PERFORMED
Exhibit A to the Agreement shall be supplemented to include the Scope of
Services, attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Exhibit A to the Agreement and Exhibit A to Amendment No. One shall
collectively be known as "Exhibit A." The City may elect to delete certain Services
within the Scope of Services at its sole discretion.
2. COMPENSATION TO CONSULTANT
Exhibit B to the Agreement shall be supplemented to include the Schedule of
Billing Rates, attached hereto as Exhibit B and incorporated herein by reference
("Services" or "Work"). Exhibit B to the Agreement and Exhibit B to Amendment No.
One shall collectively be known as "Exhibit B."
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "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 One Hundred
Six Thousand Three Hundred Sixty Nine Dollars and 50/100 ($106,369.50), 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."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. One,
including all reimbursable items and subconsultant fees, in an amount not to exceed
Thirty Five Thousand One Hundred Nineteen Dollars and 50/100 ($35,119.50).
3. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Schmitz & Associates, Inc. Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATT RNEY'S OFFICE
Date: � 145
Aaron C. Harp ow o(aioa-j►s
City Attorney
ATTEST: -741/5
Date:
By: - 44-----
Leilani I. Brown
City Clerk
'%. +_)!7 N t P
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:-11sA1S
By:
Dave
City Manager
CONSULTANT: Schmitz & Associates,
Inc., a California corporation
Date:
By. � --
Donald W. Schmitz II, AICP
Chief Executive Officer and Chief
Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
Schmitz & Associates, Inc. Page 3
Schmitz & Associates, Inc. Page A-1
April 27, 2015
City of Newport Beach
Attn: Dave Kiff, City Mgr.
Attn: Chris Miller, Harbor Resources Mgr.
100 Civic Center Drive
Newport Beach, CA 92660
SENT VIA EMAIL CORRESPONDENCE & US MAIL
Re: Newport Beach Amendment to Scope of Services & Budget
Mssrs. Kiff and Miller:
Our firm was retained by the City of Newport Beach to provide land use and Coastal Commission
Consulting services to assist the City in obtaining the Coastal Development Permit needed to implement
the Regional General Permit (RGP) for annual dredging activities in Lower Newport Harbor.
Our office has been actively engaged in carrying out the work scope agreed to in our services agreement
with the City. At this time we have completed phases I and II of said agreement and have completed
most of our work on Phase III and are currently preparing for the Coastal Commission Hearing. The
Coastal Commission hearing for the project is tentatively scheduled locally in Newport's City Council
Chambers from June 10-12, 2015.
The purpose of this correspondence is to request approval from the City Manager to expand our work
scope and contract amount in contemplation of additional work ("Extra Work") that is required of our
firm to successfully complete our work and facilitate the entitlements.
Our original agreement with the City specified that we would provide land use consulting and permit
processing services (as listed) on a time and materials basis in an amount not to exceed $71,250. Since
project inception, matters with the Coastal Commission have become significantly more complex than
originally contemplated leading to the need for additional work and coordination being undertaken
outside the scope contemplated in our agreement. Such additional services include: 1) A substantially
larger time commitment to Coastal Commissioner meetings and discussions with staff than originally
contemplated; 2, Arrangements related to the planning of a Coastal Commissioner Field Trip and tour of
the harbor and eel grass beds; 3. Expanded preparations for hearing and hearing presentation efforts
and; 4. Additional costs associated with travel expenses arising from the aforementioned additional
meetings and processing efforts.
SCHMITZ & ASSOCIATES, INC `
PROVIDERS OF LAND USE PLANNING
FOR A BETTER COMMUNITY
A ;,,
Pursuant to previous discussions with Mr, Miller and City Staff we are requesting that our scope of work
and contract amount be augmented to address the additional work required in accordance with Paragraph
4 of our Agreement.
The following is a summary of the services yet to be performed and the additional contract amount
which we are requesting authorization for:
MODIFIED WORK SCOPE AND CONTRACT AMOUNT
Original Budget for scope of services = T&M NTE $71,250
Total Billing to date (as of 3.23.15) = $65,757
Amount remaining in current Budget+ $5,493 (CR)
Remaining Work to be Completed as of March 23 2015
.:oortlmation with Coastal Staft until hearing (3.23.15- 6.10.15): 7-10 hours per month
for 2.5 months= $5,687.50 - $8,125
• Ongoing Coordination & Meetings with Newport City staff, Committees Council Members
regarding Project Status & Strategy Proceeding Forward (3.2-3.15 - 6.10.15): 5-7 hours per
month @325/hr= $1625 - $2275; Total = $4062.50 - $5,687.50
• Hearing Preparations (5.25.15 -6J0.15):
$2,475
- PowerPoint Preparation: 45 Hours @ I35/hr= $6,075
-Review Staff Report & Prepare Response to CCC Staff: 10-15 hours @ 165thr= 1,650-
- Don Schmitz Ex Parte Budget (Meetings w All Commissioners)= $15,000
a Hearing Representation: Flat Fee for Out of Town Hearings= $3250
Total Budget for Remaining _Work = Range between $35,725 - $40,612,50
[40,612.50 (high end) - $5,493 (Credited amt. remaining in budget)= $35,119.50 Increase in budget
needed.
Amendment to Existing Services Agreement to Increase Payment NTE Limit for Services Rendered
from $71,250 to $106,369.50
SCHMITZ & ASSOCIATES, INC
PROVIDERS OF LAND USE PLANNING
FOR A BETTER COMMUNITY
Please don't hesitate to contact us with any questions or comments that you might have regarding this
request or hearing preparations in general.
Sincerely,
{
Donald W. Schmitz II / President / A.I.C.P.
Headquarters:
29350 West Pacific Coast Highway, Suite 12
Malibu, CA 90265
Cell: (310) 617-0773 1 Office: (310) 589-0773 1 Fax: (310) 589-03.53
Conejo Valley Office:
5234 Chesebro Road, Suite 200
Agoura Hills, CA 91301
Cell: (310) 617-0773 1 Office: (818) 338-3636 1 Fax: (818) 338-;423
fiear xn
Of Eald We ftr>OA
MnS@schmitzandassociates.net I www.schmitzandassociates.coml www.facebook.com
SCHMITZ & ASSOCIATES, INC
PROVIDERS OF LAND USE PLANNING,
FOR A BETTER COMMUNITY
Schmitz & Associates, Inc. Page B-1
EXHIBIT B
SCHEDULE OF BILLING RATES
AMENDMENT 1— COASTAL REPRESENTATION FOR PROPOSED EELGRASS PROTECTION AND
MITIGATION PLAN
In order to continue to assist the City in obtaining the Coastal Development Permit needed to implement
the Regional General Permit (RGP) for annual dredging activities in Lower Newport Harbor, the following
services and fees are added:
• Ongoing Coordination with Coastal Staff until hearing:
- $8,125
• Ongoing coordination and meetings with City Staff, Committees, Council regarding Project status and
strategy moving forward:
- $5,687.50
• Hearing Preparations:
• PowerPoint Preparation:
- $5,075
• Review Staff Report & Prepare Response to CCC Staff:
- $2,475
e Don Schmitz Ex Parte Budget (Meetings w All Commissioners):
- $15,000
• Hearing Representation:
- $3,250
Subtotal:
$40,612.50
Credited amount remaining in budget: -$5,493.0
TOTAL: $35,119.50
PROFESSIONAL SERVICES AGREEMENT
WITH SCHMITZ & ASSOCIATES, INC. FOR
COASTAL REPRESENTATION OF THE PROPOSED EELGRASS PROTECTION
AND MITIGATION PLAN
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 30th day of June, 2014 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and SCHMITZ & ASSOCIATES, INC., a California corporation ("Consultant"),
whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, CA 90265, 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 California Coastal Commission
application support services for the City's proposed Eelgrass Protection and
Mitigation Plan ("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 June 30, 2016, 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.
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 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 Seventy One
Thousand Two Hundred Fifty Dollars and 001100 ($71,250.00), 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. 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) 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.
Schmitz & Associates, Inc. Page 2
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.
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 Christopher M. Deleau 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
Harbor Resources 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
Schmitz & Associates, Inc. Page 3
perform all Services in a manner commensurate with the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first-
class firms performing similar work under similar circumstances.
8.2 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 the highest professional standard.
8.3 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.
8.4 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
Schmitz & Associates, Inc. Page 4
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 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.
Schmitz & Associates, Inc. Page 5
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.
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
Schmitz & Associates, Inc. Page 6
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.
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.
Schmitz & Associates, Inc. Page 7
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.
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: Chris Miller, Harbor Resources Manager
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
Schmitz & Associates, Inc. Page 8
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Christopher M. Deleau
Schmitz & Associates, Inc.
29350 Pacific Coast Hwy, Suite 12
Malibu, CA 90265
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 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.
Schmitz & Associates, Inc. Page 9
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.
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 of race, religion, color, national origin, handicap,
ancestry, sex, 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.
Schmitz & Associates, Inc. Page 10
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, Inc. Page 11
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: 6 —1 I Li
By:
Aaron C. Harp
City Attorney
ATTEST: G--/
Date: '" �J
By: 4 /'o
eilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California muni ipal,cprporation
Date: 71 ' '�"I
By:
David A. Webb
Public Works Director
CONSULTANT: Schmitz & Associates,
Inc., a California corporation
Date:
By: r
Donald W. Schmitz II, AICP
Chief Executive Offices and Chief
Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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Schmitz & Associates, Inc. Page 12
EXHIBIT A
SCOPE OF SERVICES
Work Plan and Estimate for Coastal Representation of the proposed Eelgrass Protection and
Mitigation Plan (EPMP)
May 1, 2014
Prepared by Schmitz & Associates, Inc. for the City of Newport Beach
Estimate
Phase I: Due Diligence: Comprehensive $14,000
understanding of the EPMP required to
effectively advocate before the CCC, and
assistance at local hearings:
1) Review and analysis of all relevant project documents - including but not limited to City
staff reports, Planning Commission and City Council hearing transcripts from the HAMP adoption,
technical reports, project surveys and plans, reviewing agency comment letters, codes, regulations,
cases, etc.
2) Communications with Project's technical consultants as required while completing review
of their technical documents and plans.
3) Communications/Meetings with City officials and staff as necessary
4) One meeting with CCC Senior Staff and other stakeholders to preliminarily discuss issues
raised in their comment letters; these discussions will aid us in the preparation of the CCC
application as well as in future negotiations with Staff.
5) Should the city request our presence we will attend planning commission and city council
hearings should they be deemed necessary. This service expense is not included in the budget for
Phase I unless we are directed otherwise, but it is recommended.
Phase II: CCC Application Preparation $6,000
Assist City staff with preparation of CCC application. Note -Historically the City has relied
heavily on us to prepare the applications, but should the city wish to be the laboring oar our role and
cost for this work can be significantly reduced.
Schmitz & Associates, Inc. Page A-1
Phase III: CCC Application
Processing/Advocacy with Staff*"
$14,500
1) Meetings/Communications with CCC Senior Staff just prior to submittal of CCC Application
2) Meetings/Communications with CCC staff to respond to any incompletion letters issued
and address any questions raised subsequent to application submittal. Work with City staff to
prepare supplemental project analysis and information in support of project as appropriate to
respond to Coastal staff issues. Also, work closely with Coastal staff to ensure expeditious
processing of application.
3) Meetings/Communications with CCC staff to advocate for favorable recommendations and
special conditions in their Staff Report. Review staff report upon issuance and coordinate with Staff
on any areas of concern. Concurrent meetings/communications with City of Newport Beach staff and
technical consultants as required.
Phase IV: CCC Application Hearing Preparation and Representation
1) Preparation of Presentation Materials $12,500
(PowerPoint, Exhibits/Handouts for
Commissioners, etc.) in Support of Project for CCC
Hearing.
2) Communications/Meetings with Coastal $15,000
Commissioners*** in advance of Hearing to
advocate project.
4) Review and assess any adverse $6,000
comment letters received prior to hearing and
prepare additional presentation materials to rebut
any opposition (estimate & exclusive of total) .****
5) Representation of Project at Coastal $3,250
Hearing by Don Schmitz.*****
Total: $71,250
Schmitz & Associates, Inc. Page A-2
EXHIBIT B
SCHEDULE OF BILLING RATES
Consultant's Fees and Hourly Rates. Our billing practice is to charge for services based
primarily on the amount of time, including travel time, devoted to a matter at hourly rates
for the particular professional consultants' involved. These hourly rates are based upon
the particular consultant's experience, expertise and standing. The hourly rates are as
follows:
President
$325.00
Regional Manager
$195.00
Special Projects Manager
$175.00
Senior Planner
$150.00
Associate Planner
$130.00
Planning Technician
$ 95.00
These rates and job titles are modified by us from time to time and shall be
implemented immediately.
A flat fee of $3,250.00 is charged for "representation only" at California Coastal
Commission hearings, and other out-of-town hearings. The flat fee does not include
preparation for the hearing (i.e. review of documents and staff reports, lobbying,
preparation of graphics and written materials) or costs (i.e. airfare, hotel and rental
car).
Additional Services and Outside Expenditures. We may provide additional services in-
house in connection with our services. These in-house services typically include
photocopying, computerized research, facsimile services, long distance telephone,
postage, plotting, and small field expenses such as mileage, parking, lodging and the
like. Our practice is to bill these services to you directly at our usual and customary
rates.
Our services may also involve additional services provided by third party vendors and
particular professionals outside of the firm. You will be required either to pay for these
outside additional services directly, or to reimburse us if we make payment for these
services on your behalf. We sometimes will make payment for, and then bill you for
reimbursement of smaller items such as filing fees, photocopying/document
reproduction, recording fees, federal express and messenger services. While we do
have licensed attorneys who work for us as Land Use Planners, we are not a law firm
and we cannot provide legal services, advice, or engage in attorney-client
relationships. Thus, any and all communications made verbally or otherwise to
us shall not be protected by the attorney-client privilege unless we are retained
as litigation consultants in which case you should consult with your attorney
handling the case with respect to the extension of this privilege to us as litigation
consultants.
Schmitz & Associates, Inc. Page B-1
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 officers, agents,
employees and volunteers.
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, one million dollars ($1,000,000) 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) with
no endorsement or modification limiting the scope of coverage for liability
assumed under a 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
Schmitz & Associates, Inc. Page C-1
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
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 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 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
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 and its officers, officials, employees, and agents 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
Schmitz & Associates, Inc. Page C-2
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
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.
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. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, 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, Inc. Page C-3
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 8/11/14 Dept./Contact Received From: Raymund
Date Completed: 8/15/14 Sent to: Raymund By: Chris
Company/Person required to have certificate: Schmitz & Associates, Inc.
Type of contract: All Other
I. GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 8/15/14-8/15/15
A.
INSURANCE COMPANY: Farmers Insurance Company
B.
AM BEST RATING (A-: VII or greater): A; XV
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS (Must be $1 M or greater): What is limit provided?
$2,000,000 / $4,000,000
E.
ADDITIONAL INSURED ENDORSEMENT — please attach
® Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
(What is limits provided?)
include): Is it included? (completed Operations status does
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
not apply to Waste Haulers or Recreation)
® Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
G.
HIRED AND NON -OWNED AUTO ONLY:
COMPLETED OPERATIONS ENDORSEMENT (completed
H.
NOTICE OF CANCELLATION:
Operations status does not apply to Waste Haulers)
® Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
® Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes ® No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
® N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 8/15/14-8/15/15
A.
INSURANCE COMPANY: Farmers Insurance Company
B.
AM BEST RATING (A-: VII or greater) A; XV
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
$2,000,000
E
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only):
® N/A ❑ Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY:
❑ N/A ® Yes ❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 11/1/13-11/1/14
A. INSURANCE COMPANY: State Fund
B. AM BEST RATING (A-: VII or greater): Not rated
C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No
D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No
E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) $1,000,000
F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No
H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved:
a;zl:5
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
8/15/14
Date
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Approved:
Risk Management Date
" Subject to the terms of the contract.