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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.