HomeMy WebLinkAbout11 - Agreement for Fee Study and Citywide Cost Allocation Plan ServicesTO:
FROM:
CITY OF
NEWPORT BEACH
City Council Staff Report
May 28, 2019
Agenda Item No. 11
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Dan Matusiewicz, Finance Director - 949-644-3123,
dmatusiewicz@newportbeachca.gov
PREPARED BY: Theresa Schweitzer, Senior Accountant,
tschweitzer@newportbeachca.gov
PHONE: 949-644-3140
TITLE: Approval and Award of Agreement for Fee Study and Citywide Cost
Allocation Plan Services to MGT of America Consulting, LLC
ABSTRACT:
The City has worked with MGT of America Consulting, LLC. (MGT) to perform cost of
service/user fee study and citywide cost allocation plan calculations. MGT's contract
expired at the end of 2018. Because of MGT's in-depth knowledge, familiarity with City
departments, processes, and fees, staff requests City Council's approval to enter into a
three-year agreement with MGT, with the option to extend for an additional three years,
in one-year increments.
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;
and
b) Approve a three-year agreement with the option to extend for an additional three
years, in one-year increments, with MGT for fee study and citywide cost allocation
plan services for a total not -to -exceed amount of $244,436.00 over six years, and
authorize the Mayor and City Clerk to execute the agreement.
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding for this contract. It will be
expensed to the Professional Services account in the Finance Department, Revenue
Division (Account No. 0103031-811008).
Approval and Award of Agreement for Fee Study and
Citywide Cost Allocation Plan Services to MGT of America Consulting, LLC
May 28, 2019
Page 2
DISCUSSION:
Pursuant to Newport Beach Municipal Code (NBMC) Section 3.36.010(C), the City
Council has found that cost studies should be conducted at least every five years to
ensure fees are set appropriately. Cost of service studies, also referred to as user fee
studies, determine the costs of providing certain City services. In order to allocate citywide
overhead costs to departments with user fees, the consultant also completes a cost
allocation plan.
The City first contracted with MGT on April 14, 2010, and the agreement recently expired
at the end of 2018. Throughout the term of the agreement, MGT professionally and
expertly completed cost of service studies and cost allocation plan updates as required.
Departments were studied on a rotating basis with each department being studied twice
during the term of the contract. The studied departments consisted of Community
Development, Finance, Fire, Library, Municipal Operations, Police, Public Works,
Recreation and Senior Services, and Utilities. The cost allocation plan was also updated
twice and included a Harbor Tidelands component.
Because of MGT's in-depth knowledge, familiarity with City departments, processes, and
fees, staff requests City Council's approval to enter into a three-year agreement with
MGT, with the option to extend for an additional three years, in one-year increments.
While staff did not conduct a second Request for Proposals (RFP) process prior to
recommending MGT for a second contractual term, staff did evaluate the results of a
similar RFP selection process. The City of Inglewood recently conducted a Request for
Proposals (RFP) process for full cost allocation plan and user fee study services. The
scope of work, proposal evaluation, and selection process conducted by the City of
Inglewood closely mirror those of the City of Newport Beach. The City of Inglewood
received three responses to the RFP, selected and contracted with MGT following a
qualifications -based selection process. Given the recent nature of the Inglewood RFP and
the similarity in project scope and requirements between the two agencies, staff believes
that the City would have generated a similar number of proposals from the same
respondent pool if staff conducted an RFP.
Staff took Inglewood's recommendation of award to MGT and engaged in negotiations
with MGT to refine the scope of services toward the City's specific fee study needs and
to obtain favorable pricing terms for the City. The billing rates included in the agreement
are all at or below the rates set in the City of Inglewood's 2018 contract.
MGT was established in 1974 and is a well-known and reputable organization that has
conducted hundreds of user fee studies for local governmental jurisdictions, including
Anaheim, Long Beach, Orange County, Sacramento, San Diego, San Francisco, San
Jose, Santa Ana, and Santa Monica. Erin Payton, MGT's liaison to the City and project
consultant, has prepared hundreds of cost plans and user fee studies throughout her 32
years of experience.
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Approval and Award of Agreement for Fee Study and
Citywide Cost Allocation Plan Services to MGT of America Consulting, LLC
May 28, 2019
Page 3
The proposed agreement is divided into six phases, two rotations for each department
and two updates of the citywide cost allocation plan, as follows:
Project Organization
Project
Year
Department/Study Area
Cost
Year 1
Community Development, Police, Fire
$ 35,900
Year 2
Finance, Harbor, Public Works, Utilities
$ 26,300
Year 3
Citywide Cost Allocation Plan, Harbor
Tidelands Cost Allocation Plan, Library,
Recreation & Senior Services
$ 46,865
Year 4
Repeat Year 1
$ 36,977
Year 5
Repeat Year 2
$ 27,902
Year 6
Repeat Year 3
$ 48,271
Subtotal for Years 1-6
$ 222,215
10% Contingency
$ 22,221
Contractual not -to -exceed
$ 244,436
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — Professional Services Agreement with MGT of America Consulting, LLC
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ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH MGT OF AMERICA CONSULTING, LLC FOR
COST ALLOCATION PLAN AND USER FEE SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 28th day of May, 2019 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
MGT OF AMERICA CONSULTING, LLC, a Florida limited liability company
("Consultant"), whose address is 4320 West Kennedy Boulevard, Suite 200, Tampa,
Florida 33609, 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 a comprehensive review and update
of departmental user fee calculations, an update of the citywide and Harbor
Tidelands cost allocation plan, to annually update citywide and Harbor Tidelands
cost allocation plan with actual expenditures, and the creation of an optional cost
allocation plan that complies with Appendix V and VII to 2 CFR Part 200.
("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
1.1 The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2022, unless extended or terminated earlier as set forth herein.
1.2 City shall have the option, at its sole discretion, to extend the term of this
Agreement for three (3) additional successive terms of one (1) year, the first commencing
on the expiration of the initial term, on the same terms and conditions as contained in this
Agreement. City may exercise the option to extend the term of this Agreement by
providing written notice to the Consultant thirty (30) days prior to the termination date of
the current term.
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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 Two Hundred Forty Four
Thousand Four Hundred and Thirty Six Dollars and 001100 ($244,436.00), 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
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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.
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 Erin Payton 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 Revenue Division. City's Revenue
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.
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8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
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, employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services contemplated
by this Agreement (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
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the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
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.
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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 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.
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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.
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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.
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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") and/or Government Code §§ 1090 et
jpg., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. 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: Revenue Manager
Revenue Division
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: Erin Payton
MGT OF AMERICA CONSULTING, LLC
4320 West Kennedy Boulevard, Suite 200
Tampa, FL 33609
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,
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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.
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
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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 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]
MGT OF AMERICA CONSULTING, LLC Page 10
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date: s - a! Y Date:
By: c,- By:
Aaron C. Harp kw s"zo•t9 Diane B. Dixon
City Attorney Mayor
ATTEST: CONSULTANT: MGT OF AMERICA
Date: CONSULTING, LLC, a Florida limited
liability company
Date:
By: By:
Leilani I. Brown J. Bradley Burgess
City Clerk Executive Vice President and Secretary
Date:
By:
Fred Seamon
Executive Vice President and Treasurer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
MGT OF AMERICA CONSULTING, LLC Page 11
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EXHIBIT A
SCOPE OF SERVICES
Prosect Organization
The project shall be divided into the following six phases:
+ Year 1 (FY2019-20)
Update Community Development, Police, and Fire user fee studies
• Year 2 (FY2020-21)
Update Finance (includes small subset of fees not attributable to a specific
department), Harbor, Public Works, and Utilities user fee studies
• Year 3 (FY2021-22)
Update citywide cost allocation plan
Update Harbor Tidelands cost allocation plan
Update Library and Recreation & Senior Services user fee studies
• Year 4 (FY2022-23) (Should City Exercise Applicable Term Extension)
Update Community Development, Police, and Fire user fee studies
+ Year 5 (FY2023-24) (Should City Exercise Applicable Term Extension)
Update Finance (includes small subset of fees not attributable to a specific
department), Harbor, Public Works, and Utilities user fee studies
• Year 6 (FY2024-25) (Should City Exercise Applicable Term Extension)
Update citywide cost allocation plan
Update Harbor Tidelands cost allocation pian
Update Library and Recreation & Senior Services user fee studies
User Fee Updates
For the user fee study departments described above and any other department where
user fee studies should be conducted, Consultant shall:
• Conduct a comprehensive review of existing fee schedule and rate structures for
all departments to determine whether the current schedule in place is consistent,
objective, and encompasses all areas where fees could be charged.
• Identify services for which the City is not currently charging, but could lawfully do
so.
• Meet with staff and conduct interviews where appropriate to gain an
understanding of the City's existing fee structure, practices, operations, and
current and future development environment.
• Identify the total cost of providing each City service at the appropriate activity
level and in a manner that is consistent with all applicable laws, statutes, rules
and regulations governing the collection of fees or charges provided for services.
MGT OF AMERICA CONSULTING, LLC Page A- 1 11-15
• Review/revise all time estimates included in the previous studies and capture
new time estimates for new services.
• Update annual volume and revenue statistics for all fee services.
• Update all staffing and expenditure information.
• Update all cross -department support calculations.
• Compare existing recovery levels and fee for service costs, where the City is
currently charging for services.
• Recommend appropriate fees and charges for service where full cost recovery
might be unrealistic or undesirable.
• Provide revenue forecasting based on recommended fee levels.
• Update department overhead rates.
• Prepare the model for gathering data and updating the fees and charges for
service for all areas described above in a spreadsheet or database format that
automatically recalculates as items are input.
• Prepare a report that identifies each City service, its full cost, the costs currently
being recovered, and the recommended cost recovery levels. For each activity,
the report should define and identify direct and indirect costs.
• Prepare a report that evaluates the impact on City of Newport Beach revenues
by fund, department or division, and in total, of recommended changes in the fee
and service charge structure.
• Advise City staff on the model developed in determining appropriate fees and
charges based on program costs in the future.
• Prepare a report that compares the City's fee and service charges to similar
cities selected by the City with Consultant's input.
• Present initial findings and recommendations to management and adjust as
necessary.
• Prepare and deliver to City Council a report on findings and recommendations, to
facilitate an understanding by the City Council and the Public of methodologies,
issues, and recommendations resulting from the fee study.
Cost Allocation Plan
Consultant shall:
• Establish a full cost allocation methodology for specific administrative overhead
costs that will properly reimburse the City's General Fund and estimate the
anticipated reimbursements to the General Fund.
• Review/update of all central service departments (add/ remove any divisions).
• Prepare a report that identifies each City service, its full cost, the costs currently
being recovered, and the recommended cost recovery levels. For each activity,
the report should define and identify direct and indirect costs.
• Allow for additions, revisions, or removal of direct and indirect costs so that the
cost allocation plan can be easily adapted to a range of activities both simple and
complex.
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• Provide the ability to continuously update the plan from year-to-year to
accommodate organizational changes.
• Include, for purposes of determining the City's support of the Harbor Tidelands,
additional assessment of Fire, Police, Parking, and any other activities necessary
(not generally included in a central services cost allocation plan).
• Update cost plan structure/receiving departments to reflect the current City
budget structure.
• Update all functional areas within allocating departments.
• Update all staff time analyses within functional areas.
• Update all allocation basis used to allocate functional costs.
• Update expenditure data to reflect current budget (or previous year actuals).
• Compare allocations to prior cost plan results.
• Prepare a report that evaluates the impact on City of Newport Beach revenues
by fund, department or division, and in total, of recommended changes in the fee
and service charge structure.
• Advise City staff on the model developed in determining appropriate fees and
charges based on program costs in the future.
• Prepare a report that compares the City's fee and service charges to similar
cities selected by the City with Consultant's input.
• Present initial findings and recommendations to management and adjust as
necessary.
• Prepare and deliver to City Council a report on findings and recommendations, to
facilitate an understanding by the City Council and the Public of methodologies,
issues, and recommendations resulting from the fee study.
• Provide final cost allocation plan including supporting files/documentation.
Optional Cost Allocation Plan complying with Appendix V and VI I to 2 CFR 200,
Annual Update to Cost Allocation Plan
Consultant shall:
• Update the cost plan with expenditure information on an annual basis.
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EXHIBIT B
SCHEDULE OF BILLING RATES
The above referenced services by year will be billed as follows:
• 50% after all initial department meetings/interviews are conducted
• 30% upon receipt of first draft
• 20% upon receipt of final documents, reports, and City Council presentation
Hourly Billing Rates
For any services outside or in addition to the Scope of Services ("Extra Work") described
in Exhibit "A", City shall pay the Consultant for the services on a time and expense basis
in 1/10t" hour increments at the following rate(s):
Hourly
Billing
MGT Professional Staff
Rates
Project Director
$
200
Senior Manager
NewportCity of
185
Manager
$
170
Senior Consultant
$
155
Consultant
$
140
Cost Allocation and User Fee Services
Hours
(FY20)
(FY21)
(FY22)
(FY23)
(FY24)
JFY25)
MGT Hourly Rate:
$
200
$
200
$ 206
$
206
$
212
$
212
Community Development User Fees
80
$
16,000
$
16,480
Police User Fees
40
$
8,000
$
8,240
Public Works User Fees
40
$
8,000
$
8,487
Finance/Admin Services User Fees
24
$
4,800
$
5,092
Library User Fees
24
$ 4,944
$
5,092
Recreation & Senicr Services User Fees
60
$ 12,360
$
12,731
Utilities User Fees
24
$
4,800
$
5,092
Fire User Fees
40
$
8,000
$
8,240
Harbor User Fees
24
$
4,800
$
5,092
Citywide Full Cost Plan (including Harbor Tideland
100
$ 20,600
$
21,218
Annual Update of Citywide Cost plan (expenditure
12
$
2,400
$
2,400
$ 2,472
$
2,472
$
2,546
$
2,546
2 CFR Part 20C Cost Plan
24
$ 4,944
$
5,092
Travel Expenses (up to 3 site visits peryear)
$
1,500
$
1,500
$ 1,545
$
1,545
$
1,591
$
1,591
Annual Totals:
$
35,900
$ 26,300
$ 46,865
$ 36,977
$ 27,902
$ 48,271
Grand Total (all years(:
$222,215
10% Contingency:
$
22,221
Grand Total, contractual not -to -exceed:
$ 244,436
The above referenced services by year will be billed as follows:
• 50% after all initial department meetings/interviews are conducted
• 30% upon receipt of first draft
• 20% upon receipt of final documents, reports, and City Council presentation
Hourly Billing Rates
For any services outside or in addition to the Scope of Services ("Extra Work") described
in Exhibit "A", City shall pay the Consultant for the services on a time and expense basis
in 1/10t" hour increments at the following rate(s):
MGT OF AMERICA CONSULTING, LLC Page B-1
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Hourly
Billing
MGT Professional Staff
Rates
Project Director
$
200
Senior Manager
$
185
Manager
$
170
Senior Consultant
$
155
Consultant
$
140
MGT OF AMERICA CONSULTING, LLC Page B-1
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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, employees and any person
or entity owning or otherwise in legal control of the property upon which
Consultant performs the Project and/or Services contemplated by this
Agreement.
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
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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.
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement 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,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement 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.
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5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
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
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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.
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