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HomeMy WebLinkAboutC-3489 - Administration of the Community Development Block Grant (CDBG) Program for 2003-2004• G C-3`zl AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH LDM ASSOCIATES, INC. FOR COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) PROGRAM CONSULTING SERVICES THIS AMEND ENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this Iftki day of May, 2005, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City ") and LDM ASSOCIATES, INC., a corporation, whose address is 10722 Arrow Route, Suite 822, Rancho Cucamonga, California, 91730, (hereinafter referred to as "Consultant"), is made with reference to the following: RECITALS A. On July 13 2004, City and Consultant entered into a Professional Services Agreement, hereinafter referred to as "Agreement," in which Consultant was hired to administer and implement programs with Community Development Block Grant (CDBG) funds received from the federal government on behalf of the City (hereinafter referred to as the `Project. ") B. The total amount the City was to pay Consultant pursuant to the Agreement was Ninety -Five Thousand, Four Hundred and Eighty Dollars ($95,480.00). The Agreement is scheduled to expire on June 30, 2005. C. City and Consultant desire to enter into this Amendment No. 1 to reflect a reduction in the amount of consulting services Consultant will be providing to City under the Agreement, and accordingly, to decrease the total compensation due Consultant by Five Thousand Dollars ($5,000.00). D. To this end, City and Consultant mutually desire to amend the Agreement, as provided in this Amendment No. 1. NOW, THEREFORE, the parties hereto agree as follows: Total compensation due Consultant for services performed pursuant to the Agreement for all work on the Project, including all reimbursable items and subconsultant fees, shall not exceed Ninety Thousand, Four Hundred and Eighty Dollars ($90,480.00). 2. 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. • 0 IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. [INSERT] on the date first above written. APPROVED AS TO FORM: 0"—.C. YG� Na,rjO Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk Attachment: Exhibit A CITY OF NEWPORT A Municipal Cqt�orat for the City of CONSUL' 11USEBS\PLMSh" \CDBG\ 20 - 2W5*.jc \I I Admi da.ionLLDM C.W. A .d.,.da President for Beach Inc. PROFESSIONAL SERVICES AGREEMENT WITH LDM ASSOCIATES, INC. FOR COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) PROGRAM CONSULTING SERVICES THIS GREEMENT is made and entered into as of this 1,24h day of J-4 200__T, byand between the CITY OF NEWPORT BEACH, a Municipal C rporation ("City'), and LDM ASSOCIATES. INC. , a Corporation whose address is 10700 Arrow Route, Suite 822, Rancho Cucamonga, California, 91730 ( "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 is planning to administer and implement programs with Community Development Block Grant (CDBG) funds received from the U.S. Department of Housing and Urban Development. C. City desires to engage Consultant to administer and implement the Community Development Block Grant Program by providing the services as outlined in Exhibit "A" ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s) of Consultant for purposes of Project, shall be David D. Meyer. President. 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. 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 the3day of �un� , 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 0 Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. 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 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 either 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 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 Ninety Five Thousand Four Hundred and Eighty Dollars and no /100 ($ 95.480.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved 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 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 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 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. T his P roject M anager s hall b e a vailable t o C ity a t a II r easonable times during the Agreement term. Consultant has designated Rudy E. Munoz, Senior Vice President 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. 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 and Economic Development Division. Daniel Trimble shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project 3 0 0 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 n of t o c ause d elays i n C onsultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 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. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are 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. 4 9. HOLD HARMLESS Tot he fullest extent permitted by I aw, Consultants hall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) 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, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 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 ■ 0 r 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 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation i Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor'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 prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general I iability i nsurance i n a n a mount n of I ess t han o ne m illion dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 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 occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 7 • r iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives ail rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. 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 orjoint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. Except as specifically authorized herein, the services to ■ 0 0 be p rovided u nder t his Agreement s hall n of b e o therwise a ssigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 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. Documents, including drawings and specifications, prepared by Consultant pursuant to t his Agreement a re n of i ntended 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 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. 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. O 0 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. 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. 22. 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 u nder t his 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. 23. 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. 24. 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 10 0 0 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 any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. 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 indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant 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: Den Trimble, Program Manager Community and Economic Development Div. City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3230 Fax: 949 - 644 -3229 All n otices, d emands, requests o r a pprovals f rom C ITY to C onsultant shall be addressed to Consultant at: Attention: David D. Meyer, President LDM Associates, Inc. 10722 Arrow Route, Suite 822 Rancho Cucamonga, CA 91730 11 0 0 Phone: 909476 -6006 Fax: 909 -476 -6086 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, 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, 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 12 Ll 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. 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. 34. 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. 35. 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. 36. 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROYEBAS TO FORM: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corp n -Z Y cx By: -) - Mayor for the City of Newa Beach CONSULTANT: By: David yer LDM A I so fates, Inc. Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 13 P EXHIBIT "A" SCOPE OF SERVCES I. CDBG Program Implementation and Administration 0 Provide staffing and other resources as required to perform the following for all approved City CDBG projects: a. Provide technical assistance for the administration and implementation of the City's CDBG funded Programs. Work with City staff to determine project eligibility along with monitoring of programs to assure compliance with all Federal, State, and Local reporting requirements. b. Coordinate with HUD field office staff and other City representatives on CDBG related issues as needed. c. Work with City staff to prepare funding plans for CDBG funded activities. d. Prepare and maintain files and contracts for CDBG funded activities. e. Review and process all CDBG funded Capital Improvement project invoices. f. Monitor all Capital Improvement projects during construction. g. Coordinate with City staff in the identification, management, and completion of all CDBG funded projects, including preparation and review of federal funding requirements as part of construction bid packages, requests for proposals, monitoring reports, public notices, etc. h. Review completed projects for all necessary compliance issues. i. Preparation of necessary Environmental Review forms and documents for CDBG projects. j. Coordinate with City staff and provide assistance for all program monitoring and audit preparation. k. Provide Davis -Bacon and Section 3 monitoring of construction projects as required by Federal Labor Standards. 1. Provide regularly scheduled office hours at City Hall, on days and hours as determined by City staff. Additionally, remain available on -site, as needed, during HUD monitoring visits and external City audits. m. Setup and maintenance of IDIS and Community 2020 records including preparation of required reports. n. Prepare draw down requests for reimbursement of expended funds on a quarterly basis or more frequently as directed: o. Any such other activities as required to properly administer the program. 2. Administration ofSub- Recipient Contracts a. Prepare of NOFA on an annual basis for social services funding. Work with City staff to prepare a funding plan for the recommended social service providers. b. Prepare files and contracts for each of the funded social service and fair housing administration providers. c. Process all sub - recipients invoices. d. Monitor all sub - recipients on an annual basis or sooner as necessary. 2. Preparation of Consolidated Plan a. Prepare the 5 year consolidation plan per the attached schedule of performance and schedule of fees. 0 0 Task Task Hours Fee Review of prior plans Review of prior plans (Con Plan, Action Plans, CAPERS) 8.0 520.00 Sub -Total 8.0 520.00 Housing Market Analysis Survey & summary of recent sales/current market 16 1,040.00 Survey & summary of census data / other national data sets 16 1,040.00 Survey & summary of non - housing data 16 1,040.00 Survey & summary of special needs housing 16 1,040.00 Initial draft of section text 24 1,560.00 Sub -Total 80 5,720.00 Non- housing Needs Assessment Public Facilities 12 780.00 Economic Development 12 780.00 Planning / Admin 8 520.00 Consultations (County and other local gov., area service providers, other 24 1560.00 Initial Draft of section text 12 780.00 Sub -Total 68 4,420 Strategic Plan Meeting with City Staff to set Priorities 4 260.00 Initial Draft of section text 8 520.00 Review & revision of section text 16 1,040.00 Sub -Total 28 1,820.00 Miscellaneous Public Participation (minimum of 1) Notices, Hearings 4 260.00 Review and Revision of Participation Plan 8 520.00 Mapping and Graphics 32 2,080.00 Final Editing and Layout 24 1560.00 Final Review & Revisions of Plan 16 1,040.00 Duplication and Assembly • 8 520.00 Sub -Total 92 6,500.00 GRAND TOTAL 292 18,980 0 Optional Items: 0 Optional Survey: Draft Survey 4 260.00 Distribute Survey ** 12 780.00 Tally and Report 32 2,080.00 Optional Focus Group Design Agenda/Recruit Participants 8 520.00 Conduct Focus Group (2 persons conducting 1 focus group meeting) 8 520.00 Draft Summaries and Conclusions 8 520.00 * LDM shall provide 6 copies of the final version of the consolidated plan to the City for distribution. ** The postage cost is not included in the cost noted. Postage will be billed at cost + 10 %. U 7 EDIT "B" SCHEDULE OF HOURLY BILLING RATES Rates effective as of January 1, 2004 STAFF PERSON: President Vice- President Senior Associate Associate Project Assistant Secretary REEWBURSABLE ITEMS: Project Supplies Prints/Reproductions HOURLY RATE: $80.00/Hr $75.00/1-Ir $65.00/1-Ir $55.00/1-Ir $40.00/1-Ir $30.00/Hr At Cost plus 10% surcharge At Cost plus 10% surcharge Y THE CnY COUNCIL CITY OF NEWPORT BEACH Y OF NEWPORT BEACH CITY COUNCIL STAFF REPORT JUGS <; 2004 Agenda Item No. 5 July 13, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community & Economic Development, Planning Department Daniel R. Trimble, Program Manager 949/644 -3230. dtrimble na,citv.newport- beach.ca.us SUBJECT: Contract renewal with LDM Associates for administration of the Community Development Block Grant program for Fiscal Year 2003 -2004. ISSUE: Contract with LDM Associates for administration of the Community Development Block Grant program for FY 2003 -2004, 2004 -2005, including preparation of the next Five - Year Consolidated Plan. RECOMMENDATION: Approve the proposed contract renewal with LDM Associates. DISCUSSION: Background: The administration of the grant funds received by the City through the U.S. Department of Housing and Urban Development (HUD) Community Development Block Grant (CDBG) program involves a number of complex duties. In order to continue receiving these federal funds the City must comply with all regulations and reporting requirements, including submission of a multi -year Consolidated Plan, an annual One - Year Action Plan, a Community 2020 analysis, and an annual Consolidated Annual Performance and Evaluation Report (CAPER). Other activities include the maintenance of fund expenditures and fund reimbursements through the HUD network known as IDIS and funding and monitoring of Social Service and Fair Housing sub - grantee contracts. Finally, the use of federal funds as a part of the Balboa Village Streetscape and Pedestrian Improvement Program has required additional reporting and monitoring requirements due to the Davis -Bacon Act and Minority Business Enterprise/Women's Business Enterprise regulations. The City entitlement under the CDBG program for FY 2003 -2004 is $426,000. The entitlement increased to $437,000 in FY 2004 -2005. Program regulations permit the expenditure of up to twenty percent of the total grant for administration costs ($87,400). Past agreements with LDM have been based on a March to February contract year and 0 i staff has requested that LDM switch to a July to June cycle. This proposal allocates $22,500 for the period from February 1, 2004 to June 30, 2004 to complete the 2004 fiscal year and $54,000 to cover the period from July 1, 2004 to June 30, 2005, for a total of $76,500. Adequate grant administration funds from both fiscal years are available to cover the proposed expenditures. In order to secure future CDBG funding, the City must update its Five -Year Consolidated Plan. The Consolidated Plan includes an analysis of existing affordable housing and community development needs and the preparation of a five -year strategy to address the needs determined to be a high priority. The preparation of the Consolidated Plan is outside the scope of the day -to -day administration of the program. The proposal to develop the Consolidated Plan is not to exceed $18,980. This additional service cost brings the proposed FY 2005 expenditure to $72,980. The remainder of the FY 2005 administration funds ($14,420) is proposed to be used for ongoing Fair Housing administration and reimbursement of City staff time for oversight and review of LDM Associates services. This arrangement would allow the City to maintain adequate compliance with HUD requirements and still have regular oversight of the grant program. During the past year staff has been very pleased with the quality of services provided by LDM Associates. Staff and the consultant team communicate on a regular basis and continue to improve the administration of the program. The monitoring and support of our sub - grantees has also improved. More importantly, our working relationship with representatives from HUD has improved significantly. Environmental Review: Not subject to CEQA, as the activity is not a project, as defined in Section 15378(b)(4). Public Notice: None Required. Funding Availability: Funds for this service are included in City Budget Account No. 2730 -8551. Submitted by: SHARON Z. WO Assistant City M ger Prepared by: DANIEL R. TRIMBLE C & ED Program Manager Attachments: Professional Services Agreement Page 2 LLDM Associates• Inc. March 10, 2004 Daniel Trimble Program Administrator 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -5915 Re: Proposal to Provide Community Development Block Grant Administration Set-vices Dear X1 r. Trimble: As per your request, the following letter proposal is being submitted to you in conjunction with the City's Community Development Block Grant (CDBG) Program. As you know, this was LDM Associates, Int.'s (LDM's) second year in providing the City of Newport Beach with administrative services for the CDBG Program. We believe that we have been able to come in and become an extension of your staff and performing all required tasks associated with the CDBG Program. It is our desire to continue to provide you and the City with our services. Based on our experience in assisting you this last year. we proposed to perform the same scope of services as last year. We propose to perform the services from for a period of seventeen months (February 1, 2004 to June 30, 2005) for a not to exceed price of $76,500. We propose to have Mr. Rudy Munoz administer the contract on behalf of LDM. Mr. Bill Kubal will be responsible for the day to day administration functions of the CDBG program and will be assisted by clerical staff in performing the required tasks. Our billing rates are attached to this proposal and labeled Attachment "A." In addition, you have requested a cost estimate to complete the City's 2005 -2009 Five Year Consolidated Plan. LDM proposes to complete the City's Consolidated Plan for a not to exceed price of $13,980. The Consolidated Plan would include the items listed in Exhibit `B." Optional items can be completed as noted in Exhibit "B." If you have any questions regarding this matter, please do not hesitate to call me at your convenience. RuA , E. Senior 10712 Arrow Romp Suue a22 • Ran<hn Curzmonga • (aLtornia 91730 (909) 416 -6006 Nix (9(19) 476 6086 g 0 EXHIBIT "A" 0 SCHEDULE OF HOURLY BILLING RATES STAFF PERSON: President Senior Vice President Senior Associate Associate Rates effective as of January 1, 2004 HOURLY RATE: $80.00/Hr $75.00/Hr $65.00/Hr $55.00/Hr Project Assistant/Rehabilitation Specialist Secretary REIMBURSABLE ITEMS: $40.00/Hr $30.00/Hr Project Supplies At Cost plus 10% surcharge Prints/Reproductions At Cost plus 10% surcharge 4 EXHIBIT "B" 0 J_,w5 __ Task Hours Fee Review of nrior lnns Review of prior plans (Con Plan Action Plans CAPERS) 8.0 520.00 Sub -Total 8.0 520.00 Housing Market Analysis Surrey &summary of recent salestcpaem marktt 16 1,040.00 Survey & summary of census data i other national data sets 16 1,040.00 Survey & 3ltnun3ry of non- housing data 16 1,040.00 Survev & summary of special needs housing 16 1,040.00 Initial draft of section text 24 1,560.00 _ Sub -Total 80 5,720.00 Non-housing Needs Assessment Facilities 12 780.00 --Public Economic Development 12 780.00 Planning lAdmin 8 520.00 Consultations (Covuty and other local gov., area service providers, other City Dept$) 24 1560.00 Initial Draft of section test 12 780.00 Sub -Total 68 4,420 _ Stratc is Pian Meeting with City Staff to set Priorities Initial Draft of section text _ _4 ~_ 8 _ ----260.00 520.00 Review & revision of section text 16 �. 1,040.00 Sub -Total 28 1,820.00 _ Miscellaneous Public Participarion (ininimum of 1) __.. Notices, Hearin8s 4 260.00 Review and Revision of Partici ation Plan 8_1 520.00 Mapping and Graphics 32 2,080.00 Final Editing and Layout 24 1560.00 Final Review & Revisions of Plan 16 1.,040.00 Duplication and Assembly • 8 520.00 Sub -Total 92 6,500.00 GRAND TOTAL 292 18,980 6 I Items: Optional Survey: Draft Survey 4 260.00 Distribute Survey ** 12 780.00 Tally and Report 32 2,080.00 Optional Focus Group Design Agenda/RecruitParticipants S 520.00 Conduct Focus Group (2 persons conducting 1 focus group nnceting) A 8 520.00 Draft Summaries and Conclusions 8 520.00 * LDM shall provide 6 topics of the final version of the consolidated plan to the City for distribution. ** The postage cost is not included in the cost noted. Postage will be billed at cost + 10 %. 4 0 0 COMMUNITY DEVELOPMENT BLOCK GRANT ADMINISTRATION SERVICES SCOPE OF WORK General Administration Development of One -Year Action Plan • Prepare and Notice Request for Proposals for Public Services • Identify eligible capital expenditure projects • Evaluate potential projects and make recommendations Prepare and submit Consolidated Annual Performance and Evaluation Report (CAPER) and other required reports to HUD Prepare and submit reimbursement requests to HUD Public Service Oversight • Draft service agreements and memorandums of understanding with subrecipients and partnering City Departments • Review and process subrecipient invoices for payment. • Monitor subrecipients for compliance with agreement and federal regulations. • Review quarterly performance reports. • Provide technical assistance to subrecipients as needed. Capital Expenditure Oversight • Ensure compliance with procurement and prevailing wage requirements for Capital Expenditure projects. • Monitor subrecipients for compliance with agreement and federal regulations. • Review quarterly performance reports. • Provide technical assistance to subrecipients as needed. 0 i e- 3L-►89 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this i ! r day of January, 2003, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and LDM Associates whose address is 10722 Arrow Route, Suite 822, Rancho Cucamonga, CA 91730, (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide Community development Block Grant (CDBG) Administration including staff report preparation, project management, and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, David D. Meyer. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms of conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: TERM The term of this Agreement shall commence on the I St day of January 2003, and shall terminate on the 7154 day of January 2004, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 1 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached hereto as Exhibit "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Fifty -Four thousand dollars ($54,000). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with Exhibit "A ". 3.4 City shall reimburse Consultant only for those costs or expenses, which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and 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. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 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 the 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. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 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, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an 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 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 details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. 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. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated Rudy E. Munoz to be its 3 9 0 Project Manager. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to 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. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with Exhibit A. The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays that are 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. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 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. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable City, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 2 • • 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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 Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. 6i 0 0 B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 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, shall be construed as an assignment of this Agreement. 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. 2 15. OWNERSHIP OF DOCUMENTS 0 Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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. Consultant shall, at such time and in such form as the City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. Access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Copying and other services through City's reproduction company for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. 18. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia Temple shall be considered the Project Administrator and shall have the authority act 7 0 0 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. 19. 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. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment 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 designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. 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 financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits D such persons from making, or participating in making decisions that will foreseeably financially affect such interest. B. 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 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. 24. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under 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: City of Newport Beach Planning Department 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 Phone — (949) 644 -3200 Fax — (949) 644 -3250 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Rudy E. Munoz LDM Associates 10722 Arrow Route, Suite 822 Rancho Cucamonga, CA 91730 Phone — (909) 476 -6006 x 103 Fax — (909) 476 -6086 W 0 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. 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. 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. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 30. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive 0 0 bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 31. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against 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. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: AT By: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: Homer Blu u City Manager for the City of Newport Beach cc IN F. IUSERSIPLMSharedlCDB GIFY2003 -2004 WMcontractPSA2003. doc Pei 03/03/2003 13:08 9094766086 LDM MDG ASSOCIATES FA t eu ea r"I LLDM Associates-Inc. December 6.2002 Daniel Trimble Program Administrator 3300 Newport Blvd. P.O- Bbx 1768 Newport Beach, CA 92658 -8915 Re: Proposal To Provide Community Development Block Grant Administration Services Dear Mr, Trimble: As per your request, the following letter proposal is being submitted to you in conjunction with the City's Community Development Block Grant (CDBG) Program. As you know, this was LDM Associates, Inc.'s (LDM's) first year in providing the City of Newport Beach with administrative services for the CDBG Program. We believe that we have been able to come in and become an extension of your staff and performing all required tasks associated with the CDBG Program. It is our desire to continue to provide you and the City with our services. Based on our experience in assisting you this last year, we proposed to perform the same scope of service as last year for the same not to exceed price of $54,000. We propose to have Mr. Rudy Munoz continue to administer the contract and the program on behalf of LDM. Mr. Munoz would be assisted by Mr. Bill Kubal, Associate. Both of the aforementioned individuals will be responsible for the day to day administration. functions of the CDBG program and will be assisted by clerical staff in performing the required tasks. Our billing rates are attached to this proposal and labeled Attachment "A." If you have any questions regarding this matter, please do not hesitate to call me at your convenience. Si egrely, David D. Meyer President 10 72,2 Arrow Route • Suite 822 • Rancho Cucamonga • California 91730 (909) 476 -6006 • Fax (909) 476.6086 O3/03/2003 13:08 9094766086 LDM MDG ASSOCIATES EXHIBIT "A" SCHEDULE OF HOURLY BILLING RATES Rates effective as of January 1, 2002 STAFF PERSON: HOURLY RATE: President $80.00/Hr ! Vice- President $75.005+ - Senior Associate $65.00/1-Tr Associate $55.00 /Hr Project Assistant $40.00 /Hr Secretary $30.00 /Hr REIMBURSABLE ITEMS: Project Supplies At Cost plus 10% surcharge Prints/Rcproductions At Cost plus 10% surcharge 0 0 «& CITY OF NEWPORT BEACH C -3ti8°► CITY COUNCIL STAFF REPORT Agenda Item No. s 3aruery- 7, -29E}� January 14, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY FROM: Community & Economic Development, Planning Departm nt JAN 14 2003 Daniel R. Trimble, Program Administrator 949/644 -3230. mailto: dtrimblegeity.newport- beach.ca.us AFPNUVLI SUBJECT: Review and approval of contract renewal with LDM Associates for administration of the Community Development Block Grant program for Fiscal Year 2002 -2003. ISSUE: Review contract with LDM Associates. for administration of the Community Development Block Grant program for FY 2002 -2003. RECOMMENDATION: Approve the proposed contract renewal with LDM Associates. DISCUSSION: Background: The administration of the grant funds received by the City through the U.S. Department of Housing and Urban Development (HUD) Community Development Block Grant (CDBG) program involves a number of complex duties. In order to continue receiving these federal funds the City must comply with all regulations and reporting requirements, including submission of a multi -year Consolidated Plan, an annual One - Year Action Plan, 'a Community 2020 analysis, and an annual Consolidated Annual Performance and Evaluation Report (CAPER). Other activities include the maintenance of fund expenditures and fund reimbursements through the HUD network known as IDIS and funding and monitoring of Social Service and Fair Housing sub - grantee contracts. Finally, the use of federal funds as a part of the Balboa Village Streetscape and Pedestrian Improvement Program has required additional reporting and monitoring requirements due to the Davis -Bacon Act and Minority Business Enterprise/Women's Business Enterprise regulations. i The City entitlement under the CDBG program for FY 2002 -2003 is $426,000. Program regulations permit the expenditure of up to twenty percent of the total grant for administration costs. The $54,000 proposed for this contract is the same as last year and would be paid for with these funds. The remainder would be used for ongoing Fair Housing administration and reimbursement of City staff time for oversight and review of LDM Associates services. This arrangement would allow the City to maintain adequate compliance with HUD requirements and still have regular oversight of the grant program. During the past year staff has been very pleased with the quality of services provided by LDM Associates. Staff and the consultant team communicate on a regular basis and continue to improve the administration of the program. The monitoring and support of our sub - grantees has also improved. More importantly, our working relationship with representatives from HUD has improved significantly. Environmental Review: Not subject to CEQA, as the activity is not a project, as defined in Section 15378(b)(4). Public Notice: None Required. Funding Availability: Funds for this service are included in City Budget Account No. 2730 -8551. Submitted by: SHARON Z. WO —.]A� Assistant City M ger Prepared by: DANIEL R. TRIMBLE C & ED Program Administrator Attachments: Professional Services Agreement F.1 USERSIPLMSharedlCDBGIFY2003- 20041 LDMconhachenewal2003.doc Page 2 i 0 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of January, 2003, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and LDM Associates whose address is 10722 Arrow Route, Suite 822, Rancho Cucamonga, CA 91730, (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide report preparation, project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, David D. Meyer. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the, terms of conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the _ day of January 2003, and shall terminate on the _ day of January 2004, unless terminated earlier as set forth herein. 2.. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 1 3 0 0 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached hereto as Exhibit "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Fifty -Four thousand dollars ($54,000). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit. monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with Exhibit "A ". 3.4 City shall reimburse Consultant only for those costs or expenses, which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and 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. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. ,A, • i 4. STANDARD OF CARE 4.1 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 the 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. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further, represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 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, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an 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 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 details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. 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. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated Rudy E. Munoz to be its 3 S 0 0 Project Manager. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to 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. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with Exhibit A. The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays that are 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. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 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. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable City, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. I 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duty authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other.claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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 bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. s 7 0 0 B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 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, shall be construed as an assignment of this Agreement. 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. :1 0 0 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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. Consultant shall, at such time and in such form as the City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. Access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Copying and other services through City's reproduction company for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. 18. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia Temple shall be considered the Project Administrator and shall have the authority act 9 r E 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. 19. 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. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment 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 designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. 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 financial_ interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits IN 0 10 such persons from making, or participating in making decisions that will foreseeably financially affect such interest. B. 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 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. 24. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under 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: City of Newport Beach Planning Department 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 Phone — (949) 644 -3200 Fax — (949) 644 -3250 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Rudy E. Munoz LDM Associates 10722 Arrow Route, Suite 822 Rancho Cucamonga, CA 91730 Phone — (909) 476 -6006 x 103 Fax — (909) 476 -6086 9 A 0 0 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. 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. 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. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 30. OPINION OF.COST Any opinion of the construction cost prepared by Consultant represents his judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive io 12 • 0 bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 31. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against 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. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney for the City of Newport Beach ATTEST: :- LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation M Homer Bludau City Manager for the City of Newport Beach CONSULTANT By: F. IUSERSIPLMSharedlCDBGIFY2003- 2004VLDMoontractPSA2003.doc 11 13 r"I LLDM Associates-Inc. December 6, 2002 Daniel Trimble Program Administrator 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Re: Proposal To Provide Community Development Block Grant Administration Services Dear Mr. Trimble: As per your request, the following letter proposal is being submitted to you in conjunction with the City's Community Development Block Grant (CDBG) Program. As you know, this was LDM Associates, Inc.'s (LDM's) first year in providing the City of Newport Beach with administrative services for the CDBG Program. We believe that we have been able to come in and become an extension of your staff and performing all required tasks associated with the CDBG Program. It is our desire to continue to provide you and the City with our services. Based on our experience in assisting you this last year, we proposed to perform the same scope of service as last year for the same not to exceed price of $54,000. We propose to have Mr. Rudy Munoz continue to administer the contract and the program on behalf of LDM. Mr. Munoz would be assisted by Mr. Bill Kubal, Associate. Both of the aforementioned individuals will be responsible for the day to day administration functions of the CDBG program and will be assisted by clerical staff in performing the required tasks. Our billing rates are attached to this proposal and labeled Attachment "A." If you have any questions regarding this matter, please do not hesitate to call me at your convenience. Si ely, David D. Meyer President iy 10722 Arrow Route • Suite 822 • Rancho Cucamonga • California 91730 (909) 476 -6006 • Fax (909) 476 -6086 0 0 EXHIBIT "A" SCHEDULE OF HOURLY BILLING RATES Rates effective as of January 1, 2002 STAFF PERSON: President Vice- President Senior Associate Associate Project Assistant Secretary REIMBURSABLE ITEMS: Project Supplies Prints/Reproductions HOURLY RATE: $80.004r $75.00/Hr $65.00/Hr $55.00/Hr $40.00/Hr $30.00/Hr At Cost plus 10% surcharge At Cost plus 10% surcharge /S PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of October, 2001, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and LDM Associates whose address is"I'9229 Utica Avenue, Suite 120, Rancho Cucamonga, CA 91730, (hereinafter referred to as "Consultant'), is made with reference to the following: ,k Ew sr�cT "040 - ;ss AZI� 90wTC SK ,TC' 8Z2 RECITALS �A �.a c4�.� w��, ca 9OV33 A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide report preparation, project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, David D. Meyer. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms of conditions provided in this Agreement. . NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the 3D4= day of October 2001, and shall terminate on the day of October 2002, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 01 0 9 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached hereto as Exhibit "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Fifty -Four thousand dollars ($54,000). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with Exhibit W. 3.4 City shall reimburse Consultant only for those costs or expenses, which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for perforfnance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and 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. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 2 • • 4. STANDARD OF CARE 4.1 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 the 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. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 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, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an 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 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 details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. 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. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated Rudy E Munoz to 3 9 0 be its Project Manager. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to 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. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with Exhibit A. The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays that are 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. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 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. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable City, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 4 0 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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 Bests Key Rating Guide: unless otherwise approved by the City Risk Manager, A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of E • • $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 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, shall be construed as an assignment of this Agreement. 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. ll • i 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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. Consultant shall, at such time and in such form as the City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. Access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Copying and other services through City's reproduction company for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. 18. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia Temple shall be considered the Project Administrator and shall have the authority act for City under this Agreement. The Project Administrator or his /her authorized 7 0 0 representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. 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. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment 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 designee with respect to such disputed sums, Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. 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 financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits El 0 0 such persons from making, or participating in making decisions that will foreseeably financially affect such interest. B. 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 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. 24. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under 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: City of Newport Beach Planning Department 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 Phone — (949) 644 -3200 Fax — (949) 644 -3250 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Rudy E. Munoz LDM Associates 9229 Utica Avenue, Suite 120 Rancho Cucamonga, CA 91730 Phone — (909) 476 -6006 x 103 Fax — (909) 476 -6086 0 0 0 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. 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. 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. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 30. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 10 0 0 31. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against 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. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney for the City of Newport Beach ATTEST: M Lavonne rlarKless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: C7�' �""" Homer Bluda City Manager for the City of Newport Beach F: IUsers% PLNISharecACDBGIFy2001- 20021AgreementsLLMDcontract. doc 11 ®R, - MM 1� L D M ASSOCIATES September 6, 2001 Daniel Trimble Associate Planner City of Newport Beach .3.300 Newport Boulevard Post Office Box 1768 Newport Beach, CA 92658 Subject: Proposal for Community Administration. Dear Mr. Trimble: Planning b Consulting Services Development Block Grant (CDBG) Program LD'VI Associates is pleased to submit a proposal to provide consultant services to administer the City's Community Development Block Grant (CDBG) program. Our consulting •Pam has highly qualified professional staff with expertise in all aspects of CDBG administration including, but not limited to, the preparation of the City's Five -Year Consolidated Plan/One -Year Action Plan, CAPER Quarterly Financial Reports, IDIS record maintenance and drawdown preparation, monitoring of projects including on -site monitoring of public service agencies. Provided below, is the information you requested in your Request for Proposal (RFP). We hope this proposal provides you with an understanding of our firm's ability to provide the CDBG Program Administration services. If you have any questions regarding this matter, please do not hesitate to call me at your convenience. Respectfully Submitted, ,V - 0 w i Rudy E. Munoz, Senior Associate Enclosure: Proposal 3229 Uhcs bonus, Sviu 120 Rancho Cuamenpa. Cslilarma 3'700 releohana 19091 478 -0008 Fa, 19091 g8d088 • E- mId'lemebol com it • • Proposal - CDBG Program Administration September 6, 2001 Page 2 DESCRIPTION OF FIRM LDM Associates is a community development grants management, planningtredevelopment, construction management, and architectural consulting firm. The firm is comprised of individuals with a wide variety of expertise in various areas associated with grants management, redevelopment, planning, architecture and construction. Our staff is knowledgeable in a number of computer programs including all of the iVGcrosoft Office software, AutcCAD, WordPerfect, Quattro Pro, and Corel Draw. In addition, we have staff members that are knowledgeable in the use of the Department of Housing and Urban Development's (HUD's) IDIS and 2020 programs. We encourage you to visit our facilities located in the City of Rancho Cucamonga. Since 1991, we have offered administrative and management services to cities requiring assistance in CDBG program management and administration as well as the implementation of CDBG funded projects. We are currently under contract with the Cities of Rialto, Calabasas, San Fernando, and Hawthorne in the administration of their Community Development Block Grant Program. In addition, we currently provide housing rehabilitation services to the Cities of Rancho Palos Verdes, El Segundo, Hawthorne, Walnut, La Puente, Lawndale, and Carson. We currently provide labor compliance services to the Cities of Rialto, San Fernando, Hawthorne, La Puente, and Claremont. In addition to the Housing Rehabilitation and Labor Compliance services, we provide Commercial Rehabilitation. FIRtiIS EXPERIENCE As CDBG program management consultants, LDM Associates provides assistance with the overall management of the program, including the preparation of Consolidated Plans, Action Plans, monitor capital improvement projects for compliance with the Davis -Bacon Act requirements, administering sub - recipient contracts, and coordination with the Cities U.S. Department of Housing and Urban Development (HUD) representative. CO}LNIUMCATIQN WITH CITY STAFF LDM Associates proposes to provide service on site or at it's home office as required by the City. We anticipate becoming an extension of City staff and therefore would try to make ourselves flexible to meet with Planning and Economic Development Staff. In addition, we would make ourselves available to attend City Council, Redevelopment Agency, and Planning Commission meetings as requested by staff. Based on the information obtained by City staff and the City's Section 108 Loan Consultant, we antirpztz spending 16 hours per week at the City and our office (-.His is not inclusive of items listed in section III-C of the RFP). We will also make ourselves available during non- scheduled hours should the need arise by providing staff with our pager /cell phone numbers. Pending approval of the Section 108 loan, the number of hours may change (additional time may be rewired if the City wishes to have LDM provide Davis Bacon review and monitoring of its Capital Improvement projects). On the days that we are in attendance at the City, we .vi!l meet with City staff to discuss the progress of the program and issues concerning the program. ;n5 • Proposal - CDBG Program Administration September 6, 2001 Page 3 CONSULTANT TEAM The members of our consulting group proposed to provide CDBG Program Administration consulting services include David D. Meyer, Principal; Rudy E. Munoz, Senior Associate; Robert Kishita, Senior Associate, and Esther Portillo, Associate. Mr. Munoz would act as the project manager and would be the City's direct contact. ivlr. Kishita will assist Mr. Munoz in the day to day administration of the CDBG Program. Ms. Portillo will be responsible for monitoring the public service programs to assure proper record keeping is being maintained. In addition, our clerical staff will assist us in performing some functions associated with the program. The resumes of the four aforementioned individuals are included as part of this proposal. PROPOSED SCOPE OF SERVICES LDM Associates will provide the following consulting services for administration of the Community Development Block Grant Program. The proposed services to be offered are as follows: II General Administration of the CDBG Program • Coordination with City staff in the identification, management and completion of all CDBG funded projects including preparation or review of federal funding requirements as part of construction bid packages, request for proposals, monitoring reports, public notices, etc. • Preparation of all reports as required by HUD including but not limited to a One -Year action Plan and annual funding application, a CAPER report, and Quarterly Financial Reports, etc. • Setup and maintenance of IDIS and Community 2020 records including preparatiod of required reports. • Prepare draw down requests for reimbursement of expended funds on a quarterly basis or more frequently as directed. • Coordination with HUD Field office staff, Orange County HCD and Housing Authority staff, other City representatives and various CDBG related constituencies. Any such other activities as required to properly administer the program. Administration of Sub- Recipient Contracts • Prepare of NOFA on an annual basis for social services funding. Work with City staff to prepare a funding plan for the recommended social service providers. Prepare files and contracts for each of the funded social service and fair housing administration pro- iders. Proposal - CDBG Program Administration September 6, 2001 Page 4 • Process all sub - recipients invoices. Monitor all sub - recipients on an annual basis or sooner as necessary. Perform Other CDBG Related Duties Preparation of a revised Consolidated Plan, if necessary. • Preparation of necessary Environmental Review forms and documents for CDBG projects. n • Audit existing files and IDIS records for the last three fiscal years, and update and/or correct files �! and IDIS records as necessary. BUDGET PROPOSALS As requested in the Request for Proposal, LDM Associates, we estimate that we will spend approximately 16 hours per week on the administration of the CDBG program. Based on a 52 week year, the'total. estimated budget for the services is 554,000. If selected, we would be glad to meet with staff to provide the City with a more detailed estimate. . CITY OF NEGORT BEACH C —3ygq o�2EwPOR COMMUNITY AND ECONOMIC Hearing Date: October 23, 2001 @ DEVELOPMENT PLANNING DEPARTMENT Agenda Item No.: 19 * 3300 NEWPORT BOULEVARD Staff Person: I?=ieIR.; xAWWe �crFOaN� NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 641 -3229 REPORT TO THE MAYOR AND CITY COUNCIL PROPOSAL: Review and approval of one -year contract with LDA- oct" ales Tor- administration of the Community Development Block Grant program for FY 2001 -2002. SUGGESTED ACTION: Approve the proposed contract with LDM Associates for administration of the Community Development Block Grant program for FY 2001 -2002. Backjeround The administration of the grant funds received by the City through the U.S. Department of Housing and Urban Development (HUD) Community Development Block Grant (CDBG) program involves a number of complex duties. In order to continue receiving these federal funds the City must comply with all regulations and reporting requirements, including submission of a multi -year Consolidated Plan, an annual One -Year Action Plan. a Community 2020 analysis. and an annual Consolidated Annual Performance and Evaluation Report (CAPER). Other activities include the maintenance of fund expenditures and fund reimbursements through the HUD network known as IDIS and funding and monitoring of Social Service and Fair Housing sub - grantee contracts. Finally, the use of federal funds as a part of the Balboa Village Streetscape and Pedestrian Improvement Program will require additional reporting and monitoring requirements due to the Davis -Bacon Act and Minority Business Enterprise /Women's Business Enterprise regulations. Discussion From approximately 1991 to 1998 the City contracted for CDBG program administration services with Willdan Associates. In an effort to save costs and have more direct staff oversight of the CDBG program, the decision was made to discontinue the contract relationship and reassign this responsibilityto current Economic Development staff in the Planning Department. While the goal of having more oversight was met, the complexities of the various compliance and reporting requirements were more demanding than anticipated. This was compounded by staff turnover and inexperience with CDBG program administration as well as competing demands from other Economic Development activities (e.g., BID Administration & support for Balboa Peninsula revitalization). This led to concerns being raised by HUD field office representatives and their recommendation that the City reconsider contracting with an experienced firm for its CDBG program administration. CDBG- LDM Associates Contract for Program Administration October 2a. 2 -001 Paee 1 0 0 In September, staff issued a Request for Proposals for CDBG Program Administration. Four responses were received and three of the respondents were interviewed. The recommended firm. LDM Associates, has significant experience with program administration, 108 Loans, and Davis - Bacon and MBE/WBE monitoring and reporting. The staff that would be assigned to Newport Beach has developed and maintained a good working relationship with staff at the Los Angeles HUD field office and was highly recommended by the staff from the various cities they have worked with. Specifically, they were given high marks for their ability to effectively communicate with all City departments as well as HUD officials. The City entitlement under the CDBG program for FY 2001 -2002 is $518,000. Program regulations permit the expenditure of up to twenty percent of the total grant for administration costs. The $54,000 proposed for this contract would be paid for with these funds. The remainder would be used for ongoing Fair Housing administration and reimbursement of City staff time for oversight and review of LDM Associates services. This arrangement would allow the City to maintain adequate compliance with HUD requirements and still have regular oversight of the grant WW'. Submitted by: SHARON Z. WOOD Assistant City Manager Prepared by: DANIEL R. TRIMBLE Associate Planner Attachment: 1. Professional Services Agreement F: IUsers I VYUha d1CM;IFy2001-20021 AXonaaviRpt.dw Page 2 0 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of October, 2001, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and LDM Associates whose address is 9229 Utica Avenue, Suite 120, Rancho Cucamonga, CA 91730, (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide report preparation, project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, David D. Meyer. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms of conditions provided in this Agreement: NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the _ day of October 2001, and shall terminate on the _ day of October 2002, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 1 5 0 0 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached hereto as Exhibit "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Fifty -Four thousand dollars ($54,000). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with Exhibit "A ". 3.4 City shall reimburse Consultant only for those costs or expenses, which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance- by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and 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. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 2 0 4. STANDARD OF CARE 4.1 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 the 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. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 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, or any other delays beyond Consultant's control or without Consultant's fault. 6. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an 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 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 details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. 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. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated Rudy E Munoz to be its 3 h • • Project Manager. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to 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. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with Exhibit A. The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall riot be responsible for delays that are 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. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such .requests and may grant reasonable time extensions for. unforeseeable delays, which are beyond Consultant's control. 8.2 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. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable City, county, state and federal law, regulations and permit requirements and be subject to approval.of the Project Administrator and City. 4 0 0 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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 Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. s ,I • 0 B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothedate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 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, shall be construed as an assignment of this Agreement. 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. 6 0 0 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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. Consultant. shall, at such time and in such form as the City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. Access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Copying and other services through City's reproduction company for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. 18. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia Temple shall be considered the Project Administrator and shall have the authority act 7 7 • • 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. 19. 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. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment 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 designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. 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 financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits I la 0 0 such persons from making, or participating in making decisions that will foreseeably financially affect such interest. B. 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 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. 24. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under 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: City of Newport Beach Planning Department 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 Phone — (949) 644 -3200 Fax — (949) 644 -3250 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Rudy E. Munoz LDM Associates 9229 Utica Avenue, Suite 120 Rancho Cucamonga, CA 91730 Phone — (909) 476 -6006 x 103 Fax — (909) 476 -6086 E 0 26. TERMINATION 0 In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shill be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. WAIVER A waiver by either parry 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. 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. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 30. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive 10 bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 31. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against 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. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation 0 Homer Bludau City Manager for the City of Newport Beach CONSULTANT By: F: IUsersIPLMSharedlCDBGIFy2001- 200214greementsV Wcontract.doc 11 13 Planning & L D M ASSOCIATES September 6, 2001 Daniel Trimble Associate Planner City of Newport Beach 3300 Newport Boulevard Post Office Box 1763 Newport Beach, CA 92653 Consulting Services Subject: Proposal for Community Development Block Grant (CDBG) Program Administration. Dear Mr. Trimble: 1 LDM Associates is pleased to submit a proposal to provide consultant services to administer the City's Community Development Block Grant (CDBG) program. Our consulting ream has highly qualified professional staff with expertise in all aspects of CDBG administration including, but not limited to, the i� preparation of the City's Five -Year Consolidated Plan/One -Year Action Plan, CAPER, Quarterly Financial Reports, IDIS record maintenance and drawdown preparation, monitoring of projects including on -site monitoring of public service agencies. Provided below, is the information you requested in your Request for Proposal (RFP). We hope this proposal provides you with an understanding of our firm's ability to provide the CDBG Program Administration services. If you have any questions regarding this matter, please do not hesitate to call me at your convenience. Respectfully Submitted, Rudy E. Munoz, Senior Associate Enclosure: Proposal . 151 9229 Utica A ..m 9.,t. 120 • R•nche C.C, .9e. crli(w'. 97:0 • Telephone (9091416-00 0 6 • Fu 19091 479 -8088 • Fmed'emutof,., Co. • Proposal - CDBG Program Administration September 6, 2001 Page 2 DESCRIPTION OF FMNI LDM Associates is a community development grants management, planning/redevelopment, construction management, and architectural consulting firm. The firm is comprised of individuals with a wide variety of expertise in various areas associated with grants management, redevelopment, planning, architecture and construction. Our staff is knowledgeable in a number of computer programs including all of the Microsoft Office software, AutoC AD, WordPerfect, Quattro Pro, and Corel Draw. In addition. we have staff members that are knowledgeable in the use of the Department of Housing and Urban Development's (HUD's) IDIS and 2020 programs. We encourage you to visit our facilities located in the City of Rancho 1H Cucamonga. Since 1991, we have offered administrative and manasement services to cities requiring assistance in CDBG program management and administration as well as the implementation of CDBG funded projects. We are currently under contract with the Cities of Rialto, Calabasas, San Fernando, and Hawthorne in the administration of their Community Development Block Grant Program. In addition, we currently provide housing rehabilitation services to the Cities of Rancho Palos Verdes, El Segundo, Hawthorne, Walnut. La Puente, Lawndale, and Carson. We currently provide labor compliance services to the Cities of Rialto, San Fernando. Hawthorne, La Puente, and Claremont. In addition to the Housing Rehabilitation and Labor Compliance services, we provide Commercial Rehabilitation. FIRMS EXPERIENCE As CDBG program manasement consultants, LDM Associates provides assistance with the overall management of the program, including the preparation of Consolidated Plans, Action Plans, monitor capital improvement projects for compliance with the Davis -Bacon Act requirements, administering sub - recipient contracts, and coordination with the Cities U.S. Department of Housing and Urban Development (HUD) representative. COMNIUNICATIQN WITH CITY STAFF +J LDM Associates proposes to provide service on site or at it's home office as required by the City. We anticipate becoming an extension of City staff and therefore would try to make ourselves flexible to meet with Planning and Economic Development Staff. In addition, we would make ourselves available to attend City Council, Redevelopment Agency, and Planning Commission meetings as requested by staff. Based on the information obtained by City staff and the City's Section 108 Loan Consultant, we anticipate spending 16 hours per wk at the City and our office (this is not inclusive.of items listed in section III-C of the RFP). We will also make ourselves available during non - scheduled hours should the need arise by providing staff with our pager /cell phone numbers. Pending approval of the Section 103 loan, the number of hours may change (additional time may be recuired if the City wishes to have LDM provide Davis Bacon review and monitoring of its Capital Improvement projects). On the days that we are in attendance at the City, we will meet with City staff to discuss the progress of the program and issues concerning the program. Proposal - CDBG Program Administration September 6, 2001 Page 3 CONSULTANT TEAM The members of our consulting group proposed to provide CDBG Program Administration consulting services include David D. Meyer, Principal; Rudy E. Munoz, Senior Associate; Robert Kishita, Senior Associate, and Esther Portillo, Associate. Mr. Munoz would act as the project manager and would be the City's direct contact. Mr. Kishita will assist Mr. Munoz in the day to day administration of the CDBG Program. Ms. Portillo will be responsible for monitoring the public service programs to assure proper record keeping is being maintained. In addition, our clerical staff will assist us in performing some functions associated with the program. The resumes of the four aforementioned individuals are included as part of this proposal. PROPOSED SCOPE OF SERVICES LDM Associates will provide the following consulting services for administration of the Community Development Block Grant Program. The proposed services to be offered are as follows: General Administration of the CDBG Program • Coordination with City staff in the identification, management and completion of all CDBG funded projects including preparation or review of federal funding requirements as part of construction bid packages, request for proposals, monitoring reports, public notices, etc. • Preparation of all reports as required by HUD including but not limited to a One -Year action Platy and annual funding application, a CAPER report, and Quarterly Financial Reports, etc. s] • Setup and maintenance of IDIS and Community 2020 records including preparation of required reports. • Prepare draw down requests for reimbursement of expended funds on a quarterly basis or more frequently as directed. • Coordination with HUD Field office staff, Orange County HCD and Housing Authority staff, other City representatives and various CDBG related constituencies. Any such other activities as required to properly administer the program. Administration of Sub - Recipient Contracts • Prepare of NOFA on an annual basis for social services funding. Work with City staff to prepare a funding plan for the recommended social service providers. Prepare files and contracts for each of the funded social service and fair housing administration providers. ) b • 0 Proposal - CDBG Program Administration September 6, 2001 Page 4 • Process all sub - recipients invoices. • Monitor all sub - recipients on an annual basis or sooner as necessary. Perform Other CDBG Related Duties • Preparation of a revised Consolidated Plan, if necessary. • Preparation of necessary Environmental Review forms and documents for CDBG projects. • Audit existing files and IDIS records for the last three fiscal years, and update and/or correct files and IDIS records as necessary. BUDGET PROPOSALS As requested in the Request for Proposal, LDM Associates, we estimate that we will spend approximately 16 hours per week on the administration of the CDBG program. Based on a 52 week year, the'total estimated budget for the services is $54,000. If selected, we would be glad to meet with staff to provide the City with a more detailed estimate. 11