HomeMy WebLinkAboutC-3983(B) - PSA for Business Improvement District (BID) Administration ServicesAMENDMENT NO. TWO TO
PROFESSIONAL SERVICES AGREEMENT WITH
BUSINESS INFORMATION DATA SYSTEMS, INC.
C� FOR BUSINESS IMPROVEMENT DISTRICT ADMINISTRATION
J THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT
( "Amendment No. Two "), is entered into as of this , D day of August, 2012, by and
between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "),
and BUSINESS INFORMATION DATA SYSTEMS, INC. a California corporation whose
address is 3500 fast Coast Hwy, Suite 10, Corona del Mar, CA 92625 ( "Consultant "),
and is made with reference to the following:
RECITALS:
A. On July 28, 2011, City and Consultant entered into a Professional Services
Agreement ( "Agreement ") for administration services for the City's four (4)
Business Improvement Districts ( "Project ").
B. On July 6, 2012, City and Consultant entered into Amendment No. One to the
Agreement ( "Amendment No. One ") to extend the term of the Agreement,
increase the total compensation and update the City's standard provisions.
C. City desires to enter into this Amendment No. Two to acknowledge the
acceptance of the option to extend the -term of the Agreement to October 31,
2012 and to increase the total compensation.
D. City and Consultant mutually desire to amend the Agreement, as provided below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 1 of the Agreement shall be amended in its entirety and replaced with the
following: The term of the Agreement shall commence on July 28, 2011 and shall
terminate on October 31, 2012, unless terminated earlier as provided for in the
Agreement.
2. COMPENSATION
Section 4.1 of the Agreement shall be 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, the Proposal attached to
the Agreement as Exhibit A, the Schedule of Billing Rates attached to the Agreement as
Exhibit B, the BID Systems Agreement — Amendment/Extension attached to the
Agreement as Exhibit C, and the Second Amendment/ Extension Rates attached to the
Agreement as Exhibit D, and all 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 Sixty One Thousand
Eight Hundred Dollars ($61,800.00) 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. 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 to the Agreement.
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]
BUSINESS INFORMATION DATA SYSTEMS, INC. Page 2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
TWO on the dates written below.
APPROVED AS TO FORM:
CITY ATTOR EY'S PFFICE
Date: /ZZ /z
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
ey - �V
,K,4tlei'I hi I. rown
r City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: %) 2AJ— t -t_
Dave Ki
VV City Manager
CONSULTANT: BUSINESS
INFORMATION DATA SYSTEMS, INC., a
California corporation
Date:
Clinton S. Palmer
President
3 .. Date: �Zfil
I���Q
Cathy M. Palmer
Vice President
[END OF SIGNATURES]
Attachments: Exhibit D — Second Amendment/Extension Rates
A11-00670/Amd No. 2 to PSA with BID Systems
BUSINESS INFORMATION DATA SYSTEMS, INC. Page 3
EXHIBIT D
Second Amendment/ Extension Rates
BUSINESS INFORMATION DATA SYSTEMS, INC. Page D -1
3500 East Coast Highway
Suite 10
Corona del Mar, CA 92625
949 929 -7995
I NAME /ADDRESS I
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658
ATTN: Tarn Finnegan, Mary Locey
I�
DATE ESTIMATE NO.
08/17/2012 12 -1010
PROJECT
DESCRIPTION
CITY
COST
TOTAL
Billing of Member List for four BIDS (estimate - variable based on
400
5.00
2,000.00
number of payees paid at the time of mailing) per invoice mailed
Make Deposits on behalf of four Bins / hours
8
75.00
600.00
Reconcile. four BID Bank Accounts, transmit with reports to City
8.
75.00
600.00
Staff / hours
Write Checks on behalf of four BIDS / hours
8
75.00
600.00
Meeting with four BIDS BID to review List,: Create Agendas,
8
75.00
600.00
minutes where necessary /hours
Physical onsite verification of List Members / hours
4
75.00
300.00
Billing inquires and disputes for all four BIDS / hours
8
75.00
600.00
This BID is a do not exceed figure PER MONTH for contract
extension.
TOTAL AL $5,300.00
AMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT WITH
BUSINESS INFORMATION DATA SYSTEMS, INC.
FOR BUSINESS IMPROVEMENT DISTRICT ADMINISTRATION
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
( "Amendment No. One "), is entered into as of this 29th day of June, 2012, by and
between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "),
and BUSINESS INFORMATION DATA SYSTEMS, INC. a California corporation whose
address is 3500 East Coast Hwy, Suite 10, Corona del Mar, CA 92625 ( "Consultant "),
and is made with reference to the following:
RECITALS:
A. On July 28, 2011, City and Consultant entered into a Professional Services
Agreement ( "Agreement ") for administration services for the City's four (4)
Business Improvement Districts ( "Project ").
B. City desires to enter into this Amendment No. One to extend the term of the
Agreement, to increase the total compensation and to the update insurance
requirements.
C. City and Consultant mutually desire to amend the Agreement, as provided below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 1 of the Agreement shall be amended in its entirety and replaced with the
following: The term of the Agreement shall commence on July 28, 2011 and shall
terminate on August 31, 2012, with the option to extend the term of the Agreement for
two (2) additional months to October 31, 2012 at the City's sole discretion, unless
terminated earlier as provided for in the Agreement.
2. SERVICES TO BE PERFORMED
Section 2 of the Agreement, shall be supplemented to include the BID Systems
Agreement — Amendment / Extension attached hereto as Exhibit C and incorporated
herein by reference. The City may elect to delete certain tasks of Exhibit Cat its sole
discretion.
3. COMPENSATION
Section 4.1 of the Agreement shall be 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, the Proposal attached to
the Agreement as Exhibit A, the Schedule of Billing Rates attached to the Agreement as
Exhibit B and incorporated herein by reference and the BID Systems Agreement —
Amendment / Extension attached to the Agreement as Exhibit C. Consultant's
compensation for all Work performed in accordance with this Agreement including all
reimbursable items and subconsultant fees, shall not exceed Fifty -One Thousand Two
Hundred Dollars ($51,200.00) 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. 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 to the Agreement.
4. ADMINISTRATION
Section 6 of the Agreement shall be amended to reflect that this Agreement shall be
administered by the City Managers Office. The City's Project Administrator will be Tara
Finnigan, Public Information Manager and /or her designee.
5. INSURANCE
Section 14 of the Agreement shall be amended in its entirety and replaced with the
following:
14.1 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.
14.2 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.
14.3 Coverage Requirements.
14.3.1 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.
14.3.1.1 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.
BUSINESS INFORMATION DATA SYSTEMS, INC. Page 2
14.3.2 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, products - completed 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.
14.3.3 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 the Consultant arising out
of or in connection with Work to be performed under this Agreement, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit each accident.
14.3.4 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.
14.4 Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
14.4.1 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.
14.4.2 Additional Insured Status. All liability policies including general
liability, excess liability, pollution liability, and automobile liability, 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.
14.4.3 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.
14.4.4 Notice of Cancellation. All policies shall provide City with thirty (30)
days notice of cancellation (except for nonpayment for which ten (10) days notice is
required) or nonrenewal of coverage for each required coverage.
14.5 Additional Agreements Between the Parties. The parties hereby agree to
the following:
BUSINESS INFORMATION DATA SYSTEMS, INC. Page 3
14.5.1 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.
14.5.2 City's Right to Revise Requirements. The City reserves the right at
any time during the term of the Agreement to change the amounts and types of
insurance required by giving the Consultant sixty (60) days advance written notice of
such change. If such change results in substantial additional cost to the Consultant, the
City and Consultant may renegotiate Consultant's compensation.
14.5.3 Enforcement of Agreement Provisions. Consultant acknowledges
and agrees that any actual or alleged failure on the part of the City to inform Consultant
of non - compliance with any requirement imposes no additional obligations on the City
nor does it waive any rights hereunder.
14.5.4 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.
14.5.5 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.
14.5.6 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.
14.5.7 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.
14.5.8 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.
BUSINESS INFORMATION DATA SYSTEMS, INC. Page 4
6. NOTICES
Section 26.1 shall be amended to reflect the City's contact information as:
Attn: Tara Finnigan, Public Information Manager
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644 -3035
7. 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]
BUSINESS INFORMATION DATA SYSTEMS, INC. Page 5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
ONE on the dates written below.
APPROVED AS TO FORM:
CITY ATTORN Y'S OFFICE
Date: ���/
By: I
Aaron C. arp
City Attorney
ATTEST:
Date: i 12
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: Z 1511ai-L-
By: C�l
Dave Ki
City Manager
CONSULTANT: BUSINESS
INFORMATION DATA SYSTEMS, INC., a
California corporation
Date:
By: - By:
Leilani I. Brown Clinton S. Palmer
City Clerk _ President
Date:
By:
Cathy M. Palmer
Vice President
[END OF SIGNATURES]
Attachments: Exhibit C — BID Systems Agreement — Amendment / Extension
A11-00670/Amd No. 1 to PSA with BID Systems
BUSINESS INFORMATION DATA SYSTEMS, INC. Page 6
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
ONE on the dates written below.
APPROVED AS TO FORM:
CITY ATT�,T 'S OFFICE
Date: X61
By:
Aaron C. arp
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: '2l S f 2.01z
By: iN�
DaveK9ft
City Manager
'(jam CONSULTANT: BUSINESS
INFORMATION DATA SYSTEMS, INC., a
California7zovlz-
By:
ation
DDatte:
By:
Clinton S. Pa
President
Date:
By: —
Cathy M. Palmer
Vice President
[END OF SIGNATURES]
Attachments: Exhibit C — BID Systems Agreement — Amendment / Extension
A11-00670/Amd No. 1 to PSA with BID Systems
BUSINESS INFORMATION DATA SYSTEMS, INC. Page 6
i., R�
BUSINESS INFORMATION DATA SYSTEMS, INC. Page C -1
BID Systems Agreement — Amendment/ Extension REVISED 7/3/2012
Term: Two months. June 1 — August 31, 2012. Option to renew for up to an additional two
months.
Cost: Not to exceed $12,500. BID Systems has requested that $3,000 of the $12,500 be
advanced upon execution of the agreement extension to cover initial startup costs and expense
reimbursements.
Scope of Work: Per Exhibit A to July 2011 Professional Services Agreement; Consultant will
continue to provide services listed under Contract Tasks, including:
BID Systems to prepare and mail 2012 assessment billings (assuming BIDS are
renewed by Council on June 26)
BID Systems continues to receipt payments from assessed business owners
BID Systems to continue to attend BID meetings
BID Systems to continue to pay vendors as necessary
BID Systems to get current on Bank Reconciliations and send them to City's Finance
Department.
Upon the termination of this agreement, the City of Newport Beach will assume control of the
post office box (P.O. Box 2295) used by BID Systems for all Business Improvement District
mailings including assessment notices and other invoices and receipt of payments. The City will
reimburse BID Systems for the remaining months left on its contract with the Postmaster and
will transfer the lease into the City's name.
Upon separation- Transition Planning
- Prepare Current Balance Sheet as of a Separation Date
- Income statement from July 1 through Separation Date
- Supporting Bank reconciliation for months covered including a detail list of outstanding
checks
- Detail subsidiary ledgers supporting balance sheet and income statement items
- Customer database including, name, address, e-mail address and amounts billed and
service address if different than billing address.
- Aged receivable listing of assessments not paid as of separation date
Audit Preparation
- Balance Sheet, Income Statement & Bank Reconciliations for Fiscal Years Ended June
30, 2011 & June 30, 2012
- Detail subsidiary Ledgers supporting Balance Sheet and Income Statement items
- Billing Registers for past two fiscal years
- Same as above for any portion of service beyond June 30, 2012
c� 0 ---3 7f3
PROFESSIONAL SERVICES AGREEMENT WITH
BUSINESS INFORMATION DATA SYSTEMS INC.
FOR BUSINESS IMPROVEMENT DISTRICT ADMINSTRATION
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made
and entered into as of thisZ% day of July, 2011 by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation ( "City "), and BUSINESS
INFORMATION DATA SYSTEMS INC., a California corporation ( "Consultant "), whose
address is 3500 East Coast Highway, Suite 10, Corona del Mar, California, 92625.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 has four Business Improvement Districts ( "BIDs") in need of administration
services. These BIDs include: The Balboa Village Business Improvement
District, the Corona del Mar Business Improvement District, the Marine Avenue
Business Improvement District, and the Newport Beach Restaurant Association
Business Improvement District. Under the BID programs, dues are assessed
and collected from merchants who are members of the BIDs and the funds are
used for marketing and promoting the villages and restaurants, and for physical
improvements within the BIDs.
C. Consultant has served as the administrator of the City's four above named BIDs
for eleven years, previously doing business under the name Cathimarie's Inc.
City desires to engage Consultant to provide project management, financial
administration and staff services for the City's BIDs above for the upcoming fiscal
year (2011 -2012) as outlined in the Proposal attached hereto as "Exhibit A" and
incorporated herein by this reference ( "Project ").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal members] of Consultant for purposes of Project shall be Scott
Palmer and Cathy Palmer.
F. 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.
G. The four aforementioned BID Advisory Boards support the retention of the
Consultant.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on June 30, 2012 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Contractor acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. Consultant shall diligently perform all the services
described in the Proposal attached hereto as Exhibit A and incorporated herein by
reference ( "Work" or "Services "). The City may elect to delete certain tasks of the
Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and the Services shall be performed to completion in a diligent and timely
manner. The failure by Consultant to perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.1.1 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 to the other party so that all delays can be addressed.
3.2 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator, as defined in Section 6, 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.
3.3 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
either telephone, fax, 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 Thirty -Eight
Thousand Seven Hundred and no /100 ($38,700) 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
Business Information Data Systems, Inc. Page 2
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing in advance
by City. Unless otherwise approved, such costs shall be limited and include nothing
more than the following costs incurred by Consultant:
4.3.1 The actual costs of subconsultants for performance of any of the
Services that Consultant agrees to render pursuant to this Agreement, which have been
approved in advance by City and awarded in accordance with this Agreement.
4.3.2 Approved reproduction charges.
4.3.3 Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the performance of this
Agreement.
4.4 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 Scott Palmer 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.
6. ADMINISTRATION
This Agreement will be administered by the Community Development Department.
James Campbell, Principal Planner or his designee, shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator or his authorized representative shall represent City in all matters
pertaining to the Services to be rendered pursuant to this Agreement.
Business Information Data Systems, Inc. Page 3
7. CITY'S RESPONSIBILITIES
7.1 In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
7.1.1 Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional
standards. All Services shall be performed by qualified and experienced personnel who
are not employed by City, nor have any contractual relationship with City. By delivery of
completed Work, Consultant certifies that the Work conforms to the requirements of this
Agreement and all applicable federal, state and local laws and the professional standard
of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, or acts of God, or the failure of City to furnish timely information or
to approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
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,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise from or in any manner
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 and /or willful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees, vendors,
suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any
of them or for whose acts they may be liable or any or all of them).
Business Information Data Systems, Inc. Page 4
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 attorney's fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by the
Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the Work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of
the performance or to exercise a measure of control over Consultant shall mean only
that Consultant shall follow the desires of City with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the Work
to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project direction
with City's Project Administrator in advance of all critical decision points in order to
ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
14. INSURANCE
14.1 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.
Business Information Data Systems, Inc. Page 5
14.2 Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with City at all times
during the term of this contract. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
14.2.1 Consultant shall procure and maintain for the duration of the
contract insurance against claims for injuries to persons or damages to property, which
may arise from or in connection with the performance of the Work hereunder by
Consultant, his agents, representatives, employees or subconsultants. The cost of such
insurance shall be included in Consultant's bid.
14.3 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.
14.4 Coverage Requirements.
14.4.1 Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance
(with limits of at least one million dollars ($1,000,000)) for Consultant's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code In
addition, Consultant shall require each subconsultant to similarly maintain Workers'
Compensation Insurance and Employer's Liability Insurance in accordance with the
laws of the State of California, Section 3700 for all of the subconsultant's employees.
14.4.1.1 Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least thirty (30) calendar
days (ten (10) calendar days written notice of non - payment of premium) prior to such
change.
14.4.1.2 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.
14.5 General Liability Coverage. Consultant shall maintain commercial general
liability insurance in an amount not less than one million dollars ($1,000,000) per
occurrence for bodily injury, personal injury, and property damage, including without
limitation, blanket contractual liability.
14.6 Automobile Liability Coverage. Consultant shall maintain automobile
insurance covering bodily injury and property damage for all activities of the Consultant
arising out of or in connection with Work to be performed under this Agreement,
including coverage for any owned, hired, non -owned or rented vehicles, in an amount
not less than one million dollars ($1,000,000) combined single limit for each accident.
Business Information Data Systems, Inc. Page 6
14.7 Professional Liability (Errors & Omissions) Coverage. Consultant shall
maintain professional liability insurance that covers the Services to be performed in
connection with this Agreement, in the minimum amount of one million dollars
($1,000,000) limit per claim and in the aggregate.
14.8 Other Insurance Provisions or Requirements.
14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions
14.8.1.1 Waiver of Subrogation. All insurance coverage
maintained or procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing insurance
evidence in compliance with these requirements to waive their right of recovery prior to
a loss. Consultant hereby waives its own right of recovery against City, and shall require
similar written express waivers and insurance clauses from each of its subconsultants.
14.8.1.2 Enforcement of Agreement's Provisions. Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
14.8.1.3 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.
14.8.1.4 Notice of Cancellation. Consultant agrees to oblige
its insurance agent or broker and insurers to provide to City with thirty (30) days notice
of cancellation (except for nonpayment for which ten (10) days notice is required) or
nonrenewal of coverage for each required coverage.
14.9 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.
14.10 Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the Work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be provided
under this Agreement shall not be assigned, transferred contracted or subcontracted out
without the prior written approval of City. Any of the following shall be construed as an
assignment: The sale, assignment, transfer or other disposition of any of the issued
and outstanding capital stock of Consultant, or of the interest of any general partner or
Business Information Data Systems, Inc. Page 7
joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -
venture or syndicate or cotenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -
five percent (25 %) or more of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of Consultant.
Assignments of any or all rights, duties or obligations of the Consultant under this
Agreement will be permitted only with the express written consent of City. Consultant
shall not subcontract any portion of the Work to be performed under this Agreement
without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
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.
18. COMPUTER DELIVERABLES
All written documents shall be transmitted to City in the City's latest adopted version of
Microsoft Word and Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
20. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers, representatives and
employees against any and all liability, including costs, for infringement of any United
Business Information Data Systems, Inc. Page 8
States' letters patent, trademark, or copyright infringement, including costs, contained in
Consultant's drawings and specifications provided under this Agreement.
21. RECORDS
Consultant shall keep records and invoices in connection with the Work to be performed
under this Agreement. Consultant shall maintain complete and accurate records with
respect to the costs incurred under this Agreement and any Services, expenditures and
disbursements charged to City, for a minimum period of three (3) years, or for any
longer period required by law, from the date of final payment to Consultant under this
Agreement. All such records and invoices shall be clearly identifiable. Consultant shall
allow a representative of City to examine, audit and make transcripts or copies of such
records and invoices during regular business hours. Consultant shall allow inspection
of all Work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
22. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of the
dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or his /her designee with respect to such
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.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the
law or any other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
25. CONFLICTS OF INTEREST
25.1 The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
Business Information Data Systems, Inc. Page 9
25.2 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.
26. NOTICES
26.1 All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United
States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Consultant to City shall be addressed to
City at:
Attn: James Campbell
Community Development Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 644 -3228
Fax: 949 644 -3224
26.2 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attention: Scott Palmer
B.I.D. Systems Inc.
3500 East Coast Highway, Suite 10
Corona del Mar, CA 92625
Phone: 949 675 -2337
Fax: 949 760 -8415
F��dAc[llib?
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Agreement and its exhibits, the Consultant shall be
required to file any claim the Consultant may have against the City in strict conformance
with the Tort Claims Act (Government Code sections 900 et seq.).
28. TERMINATION
28.1 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
Business Information Data Systems, Inc. Page 10
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.
28.2 Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving seven
(7) calendar days prior written notice to Consultant. In the event of termination under
this Section, City shall pay Consultant for Services satisfactorily performed and costs
incurred up to the effective date of termination for which Consultant has not been
previously paid. On the effective date of termination, Consultant shall deliver to City all
reports, Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
29. STANDARD PROVISIONS
29.1 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.
29.2 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.
29.3 Integrated Agreement
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.
29.4 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.
29.5 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
Business Information Data Systems, Inc. Page 11
authorship of the Agreement or any other rule of construction which might otherwise
apply.
29.6 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.
29.7 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.
29.8 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.
29.9 Equal Opportunity Employment
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment because
of race, religion, color, national origin, handicap, ancestry, sex or age.
29.10 No Attorney's Fees
In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorney's fees.
[SIGNATURES ON NEXT PAGE]
Business Information Data Systems, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE T E CITY ATTORNEY
Date:
By:
Leonie Mulvihill
Assistant City Attorney
ATTEST:
Date: 7-2R.11
By: VI/411�
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A Califo,jnia munici al corporation
Da e: i�, _,,,,/
By: — `v, �W 1 D UNhO
Kimberly Brandt, AIC
Community Developrtfent Director
CONSULTANT: Business Information Data
Systems, Inc., a Califpmia corporation
Date: 7171 l76 1/
By: �l
Print name min 1)10
Title !F(LtT> t—
Date: -9
Print name CAIMY PAI
Title VIC6- P(� . tD6�—) t�
Attachments: Exhibit A — Proposal, Scope of Services, and Schedule of Billing
Rates
[END OF SIGNATURES]
Business Information Data Systems, Inc. Page 13
EXHIBIT "A"
PROPOSAL TO THE CITY OF NEWPORT BEACH
ADMINISTRATION OF THE BUSINESS IMPROVEMENT DISTRICTS
July 1, 2011 —June 30, 2012
BID Systems Inc. hereby proposes to perform the tasks outlined on the attached scope
of work for a not to exceed amount of $38,700 per annum. This is based on a flat
hourly rate of $65.00 per hour. The attached chart outlines our estimated contract
costs. We will also bill the City additional monies if necessary after presentation of a
written quote for additional work if requested. We will continue to provide accurate,
timely financial reports every month and on demand to each BID Board, and provide
additional services such as minutes, special mailings, and presentations when
requested. We will continue to be an integral part of each BID, and feel we are
contributing to the well -being and financial success of each community we serve.
The principals and employees of BID Systems Inc. are looking forward to maintaining
the same level of service the City has experienced in previous years. We feel that this
program has gone beyond the expected tasks in the contract and that we have become
part of each BID's business community. We are excited to continue the tradition of
diligence and extra effort we have provided to our clients and friends, while keeping the
administrative costs of the BID at a minimum.
CONTRACT TASKS
A. ANNUAL RENEWALS
1. The BID Administrator will prepare budgets and annual reports for use in
developing City Council Resolutions, Intent to Levy Assessments, and City
Council staff reports for submission to the City Council for action in June.
2. The BID Administrator will work with the City to prepare and disburse
matching funds for the BIDs.
B. CONTRACT BID ADMINISTRATION
The BID Administrator's duties fall into five categories:
1. DATABASE MANAGEMENT
The Administrator will maintain two separate databases for each BID: one
for those assessed by the BID and another for the vendors that supply
services and products to the BIDs.
The Administrator will contact the City Revenue Department at least twice
yearly for updates in business licensure within the BID areas: will ask each
of the Advisory Boards monthly about known changes within the BIDs; will
monitor mail and returned mail for changes within the BIDs; and will walk
the BIDs quarterly to affirm changes on site.
Z FINANCIAL
The Administrator will use the database to send assessments to each of
the assessees within the BIDS (as below): the Administrator will maintain a
lockbox where mail and payments shall be received; such payments will
be credited against the assessees accounts and the Administrator will
prepare and make the deposits to the bank accounts specified by the City;
the Administrator will receive and obtain necessary authorizations from the
Advisory Boards for payment of bills submitted to the BIDS, prepare
checks and submit checks to the City for approval and signature: will
receive the monthly bank statements and will reconcile the bank accounts
in accordance with generally accepted accounting principles; and will
submit copies of such reconciliations to the City's Accounting Division on a
monthly basis.
The Administrator also provides a phone and fax line that facilitates
communication between the assessees, the vendors, and the
Administrator. Part of the job of Administrator is to explain and work out
billing issues with the assessees.
3. MEETINGS
The Administrator will prepare financial reports and present them to the
Advisory Boards at each monthly meeting, including but not limited to a
Balance Sheet, a Profit and Loss statement, and a check register: budgets
can be submitted at the request of.the Advisory Board. Discussion with
the Advisory Board will also be held to update the databases as noted
above.
4. RENEWALS
The Administrator will prepare and present the next year's budget to each
of the Advisory Boards; it will then take the information from the year, the
budget approved by the Board and prepare the annual reports to be used
by City Staff and Council in reapproving the BIDS on an annual basis. The
Administrator will provide support to Staff during the preapproval process.
The Administrator will also be available on both the Intent to Levy and the
Public Hearing Council Meetings to answer questions and address Staff /
Council concerns.
5. ADMINISTRATIVE SUPPORT
The Administrator will also provide additional support to each Advisory
Board on an as needed basis. Such support, such as taking minutes,
preparing agendas, preparing mailing lists and preparing mailings, will be
charged to the concerned BID on a project -by- project basis.
Business Information Data Systems, Inc. Page 2
C. COLLECTION OF BID ASSESSMENTS
1. The BID Administrator mails out annual assessment invoices each July
following renewal of the BIDs. Payment is not elective. If a business falls
within the definition of the BID either by location or nature of operations it
must pay.
2. The BID Administrator will send second, third and fourth notices of
payment due in thirty (30) day intervals.
D.BID MEETINGS
1. Meeting days may change due to holidays, vacations, etc.
• The Restaurant Association BID
o Meets the 4th Wednesday of odd numbered months at 9:30 am
at member restaurants.
• The Balboa Village BID
o Meets the 2 "d Tuesday of the month at 8:30 am at Newport
Landing Restaurant.
• The Marine Ave BID
Meets the 3`d Thursday of the month at 8:55 am at Wilma's
Patio.
• The Corona del Mar BID
o Meets 4th Thursday of the month at 7:30 am at CdM Chamber of
Commerce.
2. The BID Administrator attends the meetings and presents the Financial
Report at the meeting.
E. BILL PAYING
1. The president or treasurer of each BID should review the bills, invoices
and receipts submitted for reimbursement by that BID, approve and sign
each one.
2. The BID Administrator will assemble the bills for each BIDs review, and
the president's signature, and prepare a check for payment. The checks
and supporting documents along with a summary is submitted by the BID
Administrator to the City.
F. PREPARATION OF 1099's
1. The Administrator will identify all vendors eligible to be sent 1099's for the
calendar year starting six months before the renewal date (January of the
previous fiscal year).
2. The Administrator will contact each vendor and secure a current W -9 with
the proper information for producing the 1099's.
Business Information Data Systems, Inc. Page 3
3. The administrator will produce 1099's and the required Form 1096's and
send to all vendors, by BID, with the City's Tax Identification Number as
Payer identification.
4. The Administrator will make sure all new vendors doing business with the
BID will supply valid W -9 forms before payment is issued.
5. The Administrator will provide all software, forms and postage necessary
to send out the 1099's.
6. The Administrator will provide the City BID Liaison with copies of all
1099's and 1096's sent out.
Business Information Data Systems, Inc. Page 4
Wiwi
i�.uun��y
CITY OF NEWPORT BEACH
BID Administration Analysis
Prepared by
BUSINESS INFORMATION DATA SYSTEMS INC.
2011 -2012
CONTRACT TASKS
COST
ESTIMATED HOURS
Section A
Annual Renewals
$2,700.00
42 hours annually
Section B
Contract BID Administration:
Database Management
$11,100.00
170 hours annually
Financial
$3,400.00
53 hours annually
Reconciliations
$400.00
6 hours annually
Supplies
$600.00
Flat Fee
Telephone
$800.00
Flat Fee
Section C
Collection of BID Assessments
$1,500.00
23 hours annually
Assessment Invoices
$4,900.00
75 hours annually
Additional Billings
$2,700.00
42 hours annually
Section D
BID Meetings
$5,600.00
88 hours annually
Section E
Bill Paying
$1,000.00
15 hours annually
Section F
1099's
$3,000.00
46 hours annually
Contingency $1,000.00
Total $38,700.00
PROFESSIONAL SERVICES AGREEMENT WITH
�l BUSINESS INFORMATION DATA SYSTEMS, INC. FOR
BUSINESS IMPROVEMENT DISTRICT ADMINISTRATION SERVICES
THIS AGREEMENT FaR PROFESSIO AL SERVICES ( "Agreement ") is made
and entered into as of this S day of , 2010, by and between the
CITY OF NEWPORT BEACH, a California M nicipal Corporation ( "City "), and
BUSINESS INFORMATION DATA SYSTEMS, INC., a California corporation whose
address is 3500 East Coast Highway, Suite #10, Corona del Mar, California, 92625
( "Consultant "), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City has four Business Improvement Districts ( "BIDs ") in need of administration
services. These BIDs include: The Balboa Village Business Improvement
District, the Corona del Mar Business Improvement District, the Marine Avenue
Business Improvement District; and the Newport Beach Restaurant Association.
Under the BID program, dues are assessed and collected from the merchants
who are members of the BID and the funds are used for marketing and
promoting the villages and restaurants, and for physical improvement projects
within the BID districts.
C. Consultant has served as the administrator for the City's four BIDs for ten years,
previously doing business under the name of Cathimarie's, Inc. City desires to
engage Consultant to provide project management, financial administration and
staff services for the City's four BIDs for the upcoming fiscal year (2010 -2011) as
outlined in the Scope of Services attached hereto as Exhibit "A" and incorporated
herein by this reference ( "Project ").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal key members of Consultant for purposes of this Project shall be
Scott Palmer and Cathy Palmer.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consutant to render professional services under the terms and conditions
set forth in this Agreement.
G. The four BID Advisory Boards support the retention of the Consultant.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 1st day of July, 2011, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of Services
attached hereto as Exhibit "A" ( "Work" or "Services "). The City may elect to delete
certain tasks of the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of Services under this Agreement and the
Services shall be performed to completion in a diligent and timely manner. The failure
by Consultant to perform the Services in a diligent and timely manner may result in
termination of this Agreement by City.
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 to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for
performance in writing to the Project Administrator (as defined in Section
6) 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.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the Services on a time and expense not -to- exceed basis in
accordance with the provisions of this Section and the Schedule of Billing Rates
attached hereto as Exhibit "A" 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 Thirty-Eight Thousand
Six Hundred Fifteen Dollars and no1100 ($38,615) 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.
Professional Services Agreement Page 2
4.1 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include a brief
description of the Services performed and /or the specific task in the
Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly
basis, and a description of any reimbursable expenditures. City shall pay
Consultant no later than thirty (30) days after approval of the monthly
invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
Services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance in writing by
City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and/or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any Work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit "A ".
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of the
Project. This Project Manager shall be available to City at all reasonable times during
the Agreement term. Consultant has designated SCOTT PALMER to be its Project
Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit "A" or assign any new or replacement personnel to the
Project without the prior written consent of City. City's approval shall not be
unreasonably withheld with respect to the removal or assignment of non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of Services upon written request of City.
Professional Services Agreement Page 3
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Planning Department, Economic
Development Division. LEIGH M. DE SANTIS or his /her designee, shall be the
Project Administrator and shall have the authority to act for City under this Agreement.
The Project Administrator or his /her authorized representative shall represent City in all
matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the Services required by this
Agreement, and that it will perform all Services in a manner
commensurate with community professional standards. All Services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City. By
delivery of completed Work, Consultant certifies that the Work conforms
to the requirements of this Agreement and all applicable federal, state and
local laws and the community professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
Work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
Professional Services Agreement Page 4
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, BID Advisory Boards, officers,
agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and
against any and all claims (including, without limitation, claims for bodily injury, death or
damage to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorney's fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any
manner 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 and /or willful acts, errors
and/or omissions of Consultant, its principals, officers, agents, employees, vendors,
suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any
of them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require Consultant
to indemnify the Indemnified Parties from any Claim arising from the sole negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be
construed as authorizing any award of attorney's fees in any action on or to enforce the
terms of this Agreement. This indemnity shall apply to all claims and liability regardless
of whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the Work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of
the performance or to exercise a measure of control over Consultant shall mean only
that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the Work
to be performed. City agrees to cooperate with the Consultant on the Project.
Professional Services Agreement Page 5
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project direction with
City's Project Administrator in advance of all critical decision points in order to ensure the
Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his/her duly
authorized designee informed on a regular basis regarding the status and progress of the
Project, activities performed and planned, and any meetings that have been scheduled or
are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of
Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement, policies of insurance of the type and amounts described below and
in a form satisfactory to City.
A. Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this contract.
City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Consultant shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the Work
hereunder by Consultant, his agents, representatives, employees or
subconsultants. The cost of such insurance shall be included in
Consultant's bid.
B. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A- (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
C. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and
Employer's Liability Insurance (with limits of at least one million
dollars ($1,000,000)) for Consultant's employees in accordance
Professional Services Agreement Page 6
with the laws of the State of California, Section 3700 of the Labor
Code In addition, Consultant shall require each subconsultant to
similarly maintain Workers' Compensation Insurance and
Employer's Liability Insurance in accordance with the laws of the
State of California, Section 3700 for all of the subconsultant's
employees.
Any notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least thirty (30)
calendar days (ten (10) calendar days written notice of non-
payment of premium) prior to such change.
Consultant shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City,
its officers, agents, employees and volunteers.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation, blanket
contractual liability.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
Work to be performed under this Agreement, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount
not less than one million dollars ($1,000,000) combined single limit
for each accident.
iv. Professional Liability (Errors & Omissions ) Coverage. Consultant
shall maintain professional liability insurance that covers the
Services to be performed in connection with this Agreement, in the
minimum amount of one million dollars ($1,000,000) limit per claim
and in the aggregate.
D. Other Insurance Provisions or Requirements.
The policies are to contain, or be endorsed to contain, the following provisions:
Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents,
officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a
loss. Consultant hereby waives its own right of recovery against
City, and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
Professional Services Agreement Page 7
ii. Enforcement of Contract Provisions. Consultant acknowledges
and agrees that any actual or alleged failure on the part of the City
to inform Consultant of non - compliance with any requirement
imposes no additional obligations on the City nor does it waive any
rights hereunder.
iii. Requirements not Limiting. Requirements of speck 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. Speck
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.
iv. Notice of Cancellation. Consultant agrees to oblige its insurance
agent or broker and insurers to provide to City with thirty (30) days
notice of cancellation (except for nonpayment for which ten (10)
days notice is required) or nonrenewal of coverage for each
required coverage.
E. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Consultant's performance under this Agreement.
F. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be provided
under this Agreement shall not be assigned, transferred contracted or subcontracted
out without the prior written approval of City. Any of the following shall be construed as
an assignment: The sale, assignment, transfer or other disposition of any of the issued
and outstanding capital stock of Consultant, or of the interest of any general partner or
joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -
venture or syndicate or cotenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-
five percent (25 %) or more of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of Consultant.
Assignments of any or all rights, duties or obligations of the Consultant under this
Agreement will be permitted only with the express written consent of City. Consultant
Professional Services Agreement Page 8
shall not subcontract any portion of the Work to be performed under this Agreement
without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing produced
( "Documents "), prepared or caused to be prepared by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use
such materials in its discretion without further compensation to Consultant or any other
party. Consultant shall, at Consultant's expense, provide such Documents to City upon
prior written request.
Documents, including drawings and specifications, prepared by Consultant pursuant to
this Agreement are not intended or represented to be suitable for reuse by City or
others on any other project. Any use of completed Documents for other projects and
any use of incomplete Documents without specific written authorization from Consultant
will be at City's sole risk and without liability to Consultant. Further, any and all liability
arising out of changes made to Consultant's deliverables under this Agreement by City
or persons other than Consultant is waived against Consultant and City assumes full
responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES
All written documents shall be transmitted to City in the City's latest adopted version of
Microsoft Word and Excel.
19. CONFIDENTIALITY
All Documents, including drafts, notes and communications that result from the Services
in this Agreement, shall be kept confidential unless City authorizes in writing the release
of said information.
20. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement of any
United States' letters patent, trademark, or copyright infringement, including costs,
contained in Consultant's drawings and specifications provided under this Agreement.
21. RECORDS
Consultant shall keep records and invoices in connection with the Work to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Professional Services Agreement Page 9
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. This section shall survive the expiration
or termination of this Agreement.
22. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of the
dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or his/her designee with respect to such
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.
23. 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
bome by Consultant. Nothing in this paragraph is intended to limit City's rights under
the law or any other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
25. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the Work performed
under this Agreement, and (2) prohibits such persons from making, or participating in
making, decisions that will foreseeably financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to
do so constitutes a material breach and is grounds for immediate termination of this
Agreement by City. Consultant shall indemnity and hold harmless City for any and all
claims for damages resulting from Consultant's violation of this Section.
26. NOTICES
Professional Services Agreement Page 10
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United
States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Consultant to City shall be addressed to
City at:
Attn: Leigh M. De Santis
Planning Department
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658
Phone: 949 - 644 -3207
Fax: 949 -644 -3224
All notices, demands, requests or approvals from CITY to Consultant shall be addressed
to Consultant at:
Attention: Scott Palmer
B.I.D. Systems, Inc.
3500 E. Coast Highway, Suite #10
Corona del Mar. CA 92625
Phone: 949-675 -2337
Fax: 949 -760 -8415
27. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Contract and Contract documents, the Consultant shall be
required to file any claim the Consultant may have against the City in strict conformance
with the Tort Claims Act (Government Code sections 900 et seq.).
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in default
in the performance of this Agreement. If such default is not cured within a period of two
(2) calendar days, or if more than two (2) calendar days are reasonably required to cure
the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non - defaulting party may
terminate the Agreement forthwith by giving to the defaulting party written notice
thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion and
without cause, of terminating this Agreement at any time by giving seven (7) calendar
days prior written notice to Consultant. In the event of termination under this Section,
Professional Services Agreement Page 11
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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
Professional Services Agreement Page 12
35. 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.
36. 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.
37. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment because
of race, religion, color, national origin, handicap, ancestry, sex or age.
38. 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.
[SIGNATURES ON NEXT PAGE]
Professional Services Agreement Page 13
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By:
Leonie Mulvihill, r►T
Assistant City Attorney
ATTEST:
By: UWv�
Leilani Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: G� l
id Kiff,
City Manager
BUSINESS INFORMATION DATA
SYSTEMS, INC,
A California Corporation
By:
(Ocer)
Title: 1i�n�
Print Name: N 1f KT -Q '�Ce� r4 Pi
(Financial Officer)
Title: //11ec-
Print Name:
Attachments: Exhibit A — Business Improvement Data Systems, Inc. Proposal
including Scope of Services and Schedule of Billing Rates
[END OF SIGNATURES]
A08-00093 5.13.10
Professional Services Agreement Page 14
EXHIBIT "A ":
BUSINESS INFORMATION DATA SYSTEMS, INC. PROPOSAL INCLUDING SCOPE
OF SERVICES AND SCHEDULE OF BILLING RATES
PROPOSAL TO THE CITY OF NEWPORT BEACH
ADMINISTRATION OF THE BUSINESS IMPROVEMENT DISTRCTS
July 1, 2010
We at Business Information Data Systems Inc. (BID Systems Inc.) are pleased tc
have provided the City of Newport Beach and its Business Improvement Districts
with administrative services for the past ten years. Since September of 1999,
BID Systems (formerly Cathimarie's Inc.) has collected more than $3,692,988.00
in revenue to the collective Business Improvement Districts. BID Systems Inc.
has sent out over 29,800 invoices or statements during this period of time. We
have written $3,620,686 in checks to various vendors to the BIDs.
BID Systems Inc. hereby proposes to perform the tasks outlined on the attached
scope of work for a not to exceed amount of $38,700 per annum. The attached
chart outlines our continuing estimated contract costs against actuaVestimated
costs. These actual /estimated costs are made from the actual first eleven billings
to the city, and the last estimated billing, as the final billing will not be billed until
after the expiration of the current contract. We will also bill the City additional
monies if necessary after presentation of a written quote for additional work if
requested. We will continue to provide accurate, timely financial reports every
month and on demand to each BID Board, and provide additional services such
as minutes, special mailings, and presentations when requested. As a service
new to the project, we will also provide issuance of 1099 forms to all vendors to
the Districts. We will continue to be an integral part of each BID, and feel we are
contributing to the well -being and financial success of each community we serve.
The principals and employees of BID Systems Inc. are looking forward to
maintaining the same level of service the City has experienced in previous years.
We feel that this program has gone beyond the expected tasks in the contract
and that we have become part of each BID's business community. We are
excited to continue the tradition of diligence and extra effort we have provided to
our clients and friends, while keeping the administrative costs of the BID at a
minimum.
Once again, we at BID Systems Inc. thank the City of Newport Beach for the
opportunity to be of service.
Proposal to the City of Newport Beach
July I, 2010
CITY OF NEWPORT BEACH
BID Administration Analysis
Prepared by
BUSINESS INFORMATION DATA SYSTEMS INC.
ACTUAUEST PROJECTED
CONTRACT TASKS 2009 -2010 2010 -2011
Task 1 Initiation (Complete in 1999) 0 0
Page 2
Task 2
Billing
4,904.00
4,900.00
Additional Billings
2,648.00
2,700.00
Customer Service
9,294.00
9,000.00
Collections
694.00
1,500.00
Deposit
3,434.00
3,434.00
Payables
1,045.00
1,045.00
Reconciliations
366.00
400.00
Supplies
500.00
500.00
Telephone
720.00
720.00
Task 3
Renewals
2,750.00
1,500.00
Task 4
Meeting
5,700.00
5,700.00
Walk thru
2,916.00
2,900.00
New Task
1099's To All Vendors
0
3,300.00
Contingency
0
1,000.00
Totals
34,991.00
38,615.00
CONTRACT TASKS
2010 -2011
ESTIMATED HOURS
Task 1
Initiation (Complete in 1999)
0
Task 2
Billing
4,900.00
75 hours annually
Additional Billings
2,700.00
42 hours annually
Customer Service
9,000.00
138 hours annually
Collections
1,500.00
23 hours annually
Deposit
3,434.00
53 hours annually
Payables
1,045.00
16 hours annually
Reconciliations
400.00
6 hours annually
Supplies
500.00
Flat Fee
Telephone
720.00
Flat Fee
Task 3
Renewals
1,500.00
23 hours annually
Task 4
Meeting
5,600.00
88 hours annually
Walk thru
2,900.00
48 hours annually
New Tasks
1099's to all Vendors
3,416.00
51 hours annually
Contingency
1,000.00
Totals
38,615.00
Proposal to the City of Newport Beach Paoe 3
July I, 2010
CONTRACTUAL SERVICES
TO BE PROVIDED BY THE BID ADMINISTRATOR
A. DATABASE MANAGEMENT
The Administrator will maintain two separate databases for each BID: one
for those assessed by the BID, and another for the vendors that supply
services and products to the BIDS.
In Order to properly maintain the databases, the Administrator will contact
the City Revenue Department twice yearly for updates in business
Iicensure within the district areas: will ask each of the Advisory Boards
monthly about known changes within the districts; will monitor mail and
returned mail for changes within the districts; and will walk the districts
quarterly to affirm changes on site.
B. FINANCIAL
The Administrator will use the database to send assessments to each of
the assessees within the districts (as below): the Administrator will
maintain a lockbox where mail and payments shall be received; such
payments will be credited against the assessees' accounts and the
Administrator will prepare and make the deposits to the bank accounts
specked by the City; the Administrator will receive and obtain necessary
authorizations from the Advisory Boards for payment of bills submitted to
the BIDS, prepare checks and submit checks to the City for approval and
signature: will receive the monthly bank statements and will reconcile the
bank accounts in accordance with generally accepted accounting
principles; and will submit copies of such reconciliations to the Accounting
Division of the City on a monthly basis.
The Administrator also provides a phone and fax line that facilitate
communications between the assesses, the vendors, and the
Administrator. Part of the job of Administrator is to explain and work out
billing issues with the assessees.
C. COLLECTION OF BID ASSESSMENTS
1. The BID Administrator mails out annual assessment invoices each
July following renewal of the BIDs. Payment is not elective. If a
business falls within the definition of the BID either by location or
nature of operations it must pay.
2. The BID Administrator will send second, third and fourth notices of
payment due in thirty (30) day intervals.
3. If a BID Member has not paid its assessment within thirty (30) days
of its fourth notification, the BID Administrator will submit the
delinquent member's name, contact information and amount owed
Proposal to the City of Newport Beach
July 1, 20 10
Pape 4
to the Revenue Division for inclusion in the City's delinquent
collections process.
4. The BID will receive the amount of the delinquent assessment from
the City.
D. MEETINGS
The Administrator will prepare financial reports and present them to the
Advisory Boards at each monthly meeting, including but not limited to a
Balance Sheet, a Profit and Loss statement, and a check register: budgets
can be submitted at the request of the Advisory Board. Discussion with
the Advisory Board will also be held to update the databases as noted
above.
Meeting days may change due to holidays, vacations, etc.
The Restaurant Association BID - Meets the 4th Wednesday of odd
numbered months at 9:30 am at member restaurants.
The Balboa Village BID — Meets the 2 "d Tuesday of the month at
9:00 am at Newport Landing Restaurant.
The Marine Ave BID — Meets the 3rd Thursday of the month at 8:55
am at Wilma's Patio.
The Corona del Mar BID — Meets 4th Thursday of the month at 7:30
am at CdM Chamber of Commerce.
E. BILL PAYING
The BID Administrator will assemble all the bills for each BID review. The
president and/or treasurer of each BID shall review the bills, invoices and
receipts submitted for reimbursement by that BID and shall sign approving
each invoice for payment.
The BID Administrator will prepare the checks and supporting documents
along with a summary for submission by the BID Administrator to the City
Liaison.
The BID Administrator's bill for services is submitted to the City Liaison for
review and payment.
F. PREPARATION OF 1099's
1. The Administrator will identify all vendors eligible to be sent 1099's
for the calendar year starting six months before the renewal fate (January
of the previous fiscal year).
Proposal to the City of Newport Beach
July 1, 2010
Page 5
2. The Administrator will contact each vendor and secure a current W-
9 with the proper information for producing the 1099's.
3. The administrator will produce 1099's and the required Form 1098s
and send to all vendors, by BID, with the City's Tax Identification Number
as Payer identification.
4. The Administrator will make sure all new vendors doing business
with the Districts will supply valid W -9 forms before payment is issued.
5. The Administrator will provide all software, forms and postage
necessary to send out the 1099's.
6. The Administrator will provide the City BID Liaison with copies of all
1099's and 1098s sent out.
G. RENEWALS
The Administrator will prepare and present the next year's budgets to
each of the Advisory Boards. The BIDs require annual renewal. Each
year the BID Administrator working with the Economic Development
Division will provide the financial information on the concluding year and
for the proposed new budget year necessary for the preparation of the
Annual Reports from each BID.. The Administrator will then provide
support to Staff during the preapproval process. The Administrator will
also be available on both the Intent to Levy and the Public Hearing
Council Meetings to answer questions and address Staff / Council
concerns.
H. PERIODIC AUDITS
The City's contract with the BID Administrator allows for an audit.
Every four (4) years, in conjunction with the Administrative Services
Department an audit should be preformed. Such audits are not budgeted
for in the Administrator's contract and costs incurred will need to be
proposed on a mutually agreeable time and materials basis to the City.
Such audits would include review of files kept by consultant; review of
processes used by the consultant to fulfill its duties; accounting controls in
place at the consultant's office; and a review of accounting transactions
during the accounting period.
I. MISC. SERVICE OPTIONS
The Administrator will also provide additional support to each Advisory
Board on an as needed basis. Such support, such as taking minutes,
preparing agendas, preparing mailing lists and preparing mailings, will be
charged to the concerned BID on a project -by- project basis.