HomeMy WebLinkAboutC-3720 - Review of Newport Coast Assessment District Financial Data� ` • • C -332o;
PROFESSIONAL SERVICES AGREEMENT
WITH BRANIN FINANCE
THIS AGREEMENT is made and entered into as of this 23rd day of July, 2004, by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation ("CITY'), and
Branin Finance whose address is #9 Carnelian in Irvine, California 92614
( "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 seeks to determine fact -based information about assessment districts in the
Newport Coast.
C. CITY desires to engage Consultant to research and review facts and accounting
information about certain assessment districts in the Newport Coast ( "Project ").
D. CONSULTANT possesses the skill, experience, ability, background, certification
and knowledge to provide the services described in this Agreement.
E. The principal member of CONSULTANT for purposes of Project, shall be Ms.
Jennifer Branin.
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 a 1 kday of July, 2004, and
shall terminate on the &kday of July, 2005, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED:
CONSULTANT shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
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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.
In no event shall Consultant's compensation exceed eighteen thousand dollars
($18,000.00) 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 invoices to CITY describing the work
performed the preceding period. 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.
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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. This Project Manager shall be available to CITY at all reasonable
times during the Agreement term. Consultant has designated Jennifer Branin to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit B 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 City Manager's Office. Dave Kiff
shall be the Project Administrator and shall have the authority to act for CITY
under this Agreement. The Project Administrator or his /her authorized
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representative shall represent CITY in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES:
In order to assist Consultant in the execution of its responsibilities under this
Agreement, CITY agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at CITY. CITY will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
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 r
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.
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9. HOLD HARMLESS:
To the fullest extent permitted by law, Consultant shall 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 negligently
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
active 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.
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11. COOPERATION:
Consultant agrees to work closely and cooperate fully with CITY's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. CITY agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY:
Consultant shall discuss and review all matters relating to policy and Project
direction with CITY's Project Administrator in advance of all critical decision
points in order to ensure the Project proceeds in a manner consistent with CITY
goals and policies.
13. PROGRESS:
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE:
Without limiting Consultant's indemnification of CITY, and prior to
commencement of work. Consultant shall obtain, provide and maintain at 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 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.
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D. Coverage Requirements.
I. General Liability Coverage. Consultant shall maintain commercial general
liability insurance in an amount not less than one million dollars
($1,000,000) per occurrence for bodily injury, personal injury, and property
damage, including without limitation, 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.
ii. 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 or rented
vehicles, in an amount not less than three hundred thousand dollars
($300,000) combined single limit for each occurrence.
iii. Automobile Liability Coverage. Consultant shall maintain automobile
insurance covering bodily injury and property damage for all activities of
the Consultant arising out of or in connection with work to be performed
under this Agreement, including coverage for any owned, hired, non -
owned or rented vehicles, in an amount not less than three hundred
thousand ($ 300,000) combined single limit for each occurrence.
E. 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.
F. Additional Insurance. Consultant shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance,
which in its own judgment may be necessary for its proper
protection and prosecution of the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS:
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of CITY. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
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percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING:
The parties recognize that a substantial inducement to CITY for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
consent of CITY. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of CITY.
17. OWNERSHIP OF DOCUMENTS:
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 this Agreement are not intended or represented to be suitable for
reuse by CITY or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at CITY's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by CITY or persons other than
Consultant is waived against Consultant and CITY assumes full responsibility for
such changes unless CITY has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES:
No provision required.
19. CONFIDENTIALITY:
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless CITY authorizes in writing the release of information.
20. 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
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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:
22.
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.
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to CITY, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
CITY to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
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
accomplished by Consultant, the additional design, construction and /or
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restoration expense shall be bome 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:
Dave Kiff, Assistant City Manager
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658 -8915
Phone — 949 - 644 -3002
Fax — 949 - 644 -3020
E -mail — dkiff @city.newport- beach.ca.us
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Ms. Jennifer Branin
Branin Finance
#9 Carnelian
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Irvine, California 92614
Phone — 949 - 653 -1466
Fax — 949 -653 -1457
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.
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32. CONFLICTS OR INCONSISTENCIES:
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
33. 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.
APP V AS TO FORM:
Robin Clauson,
Assistant City Attorney
for the City of Newport Beach
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CITY OF NEWPORT BEACH,
A Municip I Corporation
By: .� �`✓�'
H mer L. Blud u, City Manager
for the City of Newport Beach
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ATTEST:
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CONSULTANT:
By:(/I�/U,jq -- ,/l '/�d& By:�J�' lam
LaVonne Harkless, Jennifer ranin
City Clerk Branin Finance
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
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E
Exhibit A
Scope of Services
E
1. Complete Research and Analysis of final round of County
Documents (71 hours)
2. Finalize Draft Report (20 hours)
3. Participate in meetings, inlcluding preparation and travel time (12
hours)
4. Participate in workshop /forum with the County of Orange (8 hours)
S. Address post- workshop comments (6 hours)
6 . Respond to questions by legal counsel (6 hours)
Total Amount of Hours = 123
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Exhibit B
Schedule of Billing Rates
Jennifer Branin, Principal = $140 /hour
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Agenda Item No. 6
July 27, 2004
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o CITY OF NEWPORT BEACH
MEMORANDUM
TO:
Mayor and Council Members
FROM:
Dave Kiff, Assistant City Manager
DATE:
July 23, 2004
RE:
PSA for Agenda Item #6
wL 2. 2004
1-k - Ao 8- to -oy�
Assistant City Attorney Robin Clauson and I have amended the proposed Professional
Services Agreement with Branin Finance (Agenda Item #6 on the July 27`" Agenda) to
include a different insurance section.
Please use the attached PSA as the PSA we have asked you to authorize Homer to
execute. The price, $18,000.00, has not changed. Thank you.
A1.1 nil 10 2004
City Hall • 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768
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PROFESSIONAL SERVICES AGREEMENT •
WITH BRANIN FINANCE
THIS AGREEMENT is made and entered into as of this 23rd day of July, 2004, by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "CITY"), and
Branin Finance whose address is #9 Camelian in Irvine, California 92614
( "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 seeks to determine fact -based information about assessment districts in the
Newport Coast.
C. CITY desires to engage Consultant to research and review facts and accounting
information about certain assessment districts in the Newport Coast ( "Project ").
D. CONSULTANT possesses the skill, experience, ability, background, certification
and knowledge to provide the services described in this Agreement. •
E. The principal member of CONSULTANT for purposes of Project, shall be Ms.
Jennifer Branin.
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 day of July, 2004, and
shall terminate on the _ day of July, 2005, unless te_ rminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED:
CONSULTANT shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The •
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• 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.
In no event shall Consultant's compensation exceed eighteen thousand dollars
($18,000.00) 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.
4A Consultant shall submit invoices to CITY describing the work
performed the preceding period. 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.
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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. This Project Manager shall be available to CITY at all reasonable
times during the Agreement term. Consultant has designated Jennifer Branin to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit B 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 City Manager's Office. Dave Kiff
shall be the Project Administrator and shall have the authority to act for CITY .
under this Agreement. The Project Administrator or his /her authorized
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• representative shall represent CITY in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES:
In order to assist Consultant in the execution of its responsibilities under this
Agreement, CITY agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at CITY. CITY will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
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 r
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.
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9. HOLD HARMLESS: •
To the fullest extent permitted by law, Consultant shall 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 negligently
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).
It
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
active 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.
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. 11. COOPERATION:
Consultant agrees to work closely and cooperate fully with CITY's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. CITY agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY:
Consultant shall discuss and review all matters relating to policy and Project
direction with CITY's Project Administrator in advance of all critical decision
points in order to ensure the Project proceeds in a manner consistent with CITY
goals and policies.
13. PROGRESS:
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE:
Without limiting Consultant's indemnification of CITY, and prior to
is commencement of work. Consultant shall obtain, provide and maintain at 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 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.
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D. Coverage Requirements.
General Liability Coverage. Consultant shall maintain commercial general
liability insurance in an amount not less than one million dollars
($1,000,000) per occurrence for bodily injury, personal injury, and property
damage, including without limitation, 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.
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 or rented
vehicles, in an amount not less than three hundred thousand dollars
($300,000) combined single limit for each occurrence.
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iii. Automobile Liability Coverage. Consultant shall maintain automobile
insurance covering bodily injury and property damage for all activities of
the Consultant arising out of or in connection with work to be performed
under this Agreement, including coverage for any owned, hired, non- •
owned or rented vehicles, in an amount not less than three hundred
thousand ($ 300,000) combined single limit for each occurrence.
E. 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.
F. Additional Insurance. Consultant shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance,
which in its own judgment may be necessary for its proper
protection and prosecution of the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS:
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of CITY. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty •
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• percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING:
The parties recognize that a substantial inducement to CITY for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
consent of CITY. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of CITY.
17. OWNERSHIP OF DOCUMENTS:
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 parry. Consultant shall, at
Consultant's expense, provide such Documents to CITY upon prior written
request.
• Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by CITY or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at CITY's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by CITY or persons other than
Consultant is waived against Consultant and CITY assumes full responsibility for
such changes unless CITY has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES:
No provision required.
19. CONFIDENTIALITY:
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless CITY authorizes in writing the release of information.
20. 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
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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 under this Agreement and
any services, expenditures and disbursements charged to CITY, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
CITY to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a •
period of three (3) years from the date of final payment to Consultant under this
Agreement.
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
accomplished by Consultant, the additional design, construction and /or
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• restoration expense shall be bome 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:
Dave Kiff, Assistant City Manager
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658 -8915
Phone — 949 - 644 -3002
Fax — 949 - 644 -3020
E -mail — dkiff @city.newport- beach.ca.us
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Ms. Jennifer Branin
• Branin Finance
#9 Camelian
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Irvine, California 92614 •
Phone — 949 - 653 -1466
Fax — 949 - 653 -1457
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.
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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.
APP V AS TO FORM:
Robin Clauson,
Assistant City Attorney
for the City of Newport Beach
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CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Homer L. Bludau, City Manager
for the City of Newport Beach
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ATTEST: CONSULTANT: •
By: By:
LaVonne Harkless, Jennifer Branin
City Clerk Branin Finance
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
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• Exhibit A
Scope of Services
1. Complete Research and Analysis of final round of County
Documents (71 hours)
2. Finalize Draft Report (20 hours)
3. Participate in meetings, inlcluding preparation and travel time (12
hours)
4. Participate in workshop /forum with the County of Orange (8 hours)
5. Address post- workshop comments (6 hours)
6. Respond to questions by legal counsel (6 hours)
Total Amount of Hours = 123
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CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 6
July 27, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
949/644 -3002 or dkiff @dty.newport- beach.ca.us
SUBJECT: Professional Services Agreement with Jennifer Branin for Newport
Coast Assessment District Review
ISSUE:
Should the City of Newport Beach enter into a contract with Jennifer Branin of Branin
Finance to finalize her examination of the formation of and expenditures from certain
. assessment districts in the Newport Coast as required by the City's Pre - Annexation
Agreement (PAA) for the Newport Coast?
RECOMMENDATION:
Authorize the City Manager to execute an $18,000 Professional Services Agreement (PSA)
with Ms. Jennifer Branin of Branin Finance to complete her review of Newport Coast
assessment district financial data.
DISCUSSION:
Background: The City added the Newport Coast community to the remainder of Newport
Beach in January 2002. As a part of our annexation effort, the City Council entered into a
Pre - Annexation Agreement (PAA) with residents of the Newport Coast to accomplish
certain goals in their community. One aspect of the PAA included an expert legal review -
funded at City expense - of certain assessment districts in the Newport Coast. The
operative section (Section 8) of the PAA reads as follows:
8. ANALYSIS OF ASSESSMENT DISTRICTS AND RECOVERY OF MONIES OWED. The City
shall retain legal counsel experienced in municipal financing including the formation and
administration of improvement and assessment districts. City shall instruct legal counsel to
conduct a thorough examination or audit of the documents prepared in conjunction with all
Assessment Districts and Improvement Districts in the Newport Coast and Newport Ridge.
For the purposes of this Section, these districts shall collectively be referred to as
"Assessment Districts" and shall include, but not be limited to, County Assessment Districts
#88 -1 and #92 -1. This examination shall be commenced within sixty (60) days after the
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PSA with Jennifer Bran /n
July 27, 2004
Page 2
Effective Date and shall be concluded within (150) days of the Effective Date subject to an
extension of the examination period by Committee. City shall not place any limitation on legal
counsel's budget for the reasonable and necessary expenses to be incurred in the
performance of a complete and thorough examination, and the attainment of a result, which is
satisfactory to the Committee. Legal counsel shall report findings to the Committee in writing
within one hundred eighty (180) days after the Effective Date subject to an extension of time
approved by the Committee. In the event that legal counsel determines that:
(i) Modifications to any decision, document or practice could result in Assessment District
debt relief for owners of fully improved and occupied single family residences; or
(ii) Assessment District funds were not used in a legal manner; or
(iii) Assessment District funds were not used in a manner that benefited those who were
assessed in a manner proportionate to the assessment imposed; or
(iv) The allocation of costs or expenses related to the Assessment District was inequitable
or is based upon erroneous assumptions regarding use and /or benefit; then,
... the City shall use its best efforts, including initiation of litigation against any and all
appropriate parties if determined appropriate by the City Council, to provide relief through a
modification of the decision, documents, conditions and /or practice or to recover such funds.
Furthermore, the City shall use its best efforts, including initiation of litigation against any and
all appropriate parties, if determined appropriate by the City Council, to provide relief, as each
new assessment district is proposed, or an existing assessment district is modified. Such
relief may include, but is not limited to, a modification of the proposed assessment district
formation or any decision, documents, conditions, and /or practice or, if appropriate, to recover
funds.
Assessment Districts. Legislative bodies created assessment districts long before
Proposition 13 (most California assessment acts date back to the early 1900s), but the
districts came into greater use in the 1980s and 1990s. Major landowners interested in
developing their land for residential development often -- with a majority vote of approval by
the landowner itself — created a special financing district to pay for the streets, sewers,
water lines, fire stations, streetlights, and curbs and gutters that would serve the homes.
Following a majority landowner approval (a majority of ballots received from landowners
approve the proposed work and assessments, weighted by financial obligation), and the
formation of the district, the public agency then issues bonds secured by special
assessments to fund the project's improvements. The special assessments are added as a
line item to the property tax bill and collected by the County when property taxes are due.
Taxpayers' rights organizations criticized assessment districts, arguing that the districts
were an "end- around" Proposition 13. Yet the districts themselves were approved by a
majority of the landowners (one entity, generally).
Mello-Roos Districts. Following Proposition 13's passage in 1978, Mello -Roos districts
(after their legislative authors, State Senator Henry Mello and Assemblyman Mike Roos,
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• • PSA with Jennifer Branin
July 27, 2004
Page 3
and also known as community facilities districts, "CFDs ") have also often funded significant
new development in California. Proposition 13 - in addition to limiting most property taxes
to I% of the assessed value of property and any increase in assessed value of properties to
2% per year - also required 2/3rd' voter approval of any new special tax, including increases
above the 1% "basic levy." Mello -Roos districts were criticized just like assessment
districts, but in this case the CFDs were approved by a 2 /3rds vote of the landowners (one
entity, generally).
CFDs and similarly - styled assessment districts are common today in new communities like
Aliso Viejo, Rancho Santa Margarita, Mission Viejo, and the Newport Coast.
Newport Coast's Assessment Districts. When the Irvine Company developed the Newport
Coast, it worked with the County to create two major assessment districts (ADs 88 -1
[Newport Coast] and 92 -1 [Newport Ridge]) that funded the construction of Newport Coast
Drive, the widening of PCH, the fire station, and much more. To build Newport Coast
Elementary School and improvements to CDM High School, the Newport-Mesa Unified
School District (NMUSD) created an overlapping Mello -Roos district at about the same
period of time (CFD #90 -1). Many residents of Newport Beach (including at the Castways
and Harbor Cove) also paid into CFD 90 -1. Four other improvement districts (secured by
ad valorem taxes approved when general obligation bonds were issued) overlap the
Newport Coast and Ridge - these are two water ADs and two sewerage ADs formed and
managed by the Irvine Ranch Water District (IRWD).
Assessment districts and Mello -Roos districts are often not popular with the property
owners who pay into them after purchasing a home. They can add 25% or more to an
average homeowner's tax bill for up to 20 to 30 years after the home's purchase (see
examples of property taxes paid by various properties below). But each homebuyer clearly
agrees to pay the assessments, special taxes or ad valorem taxes as a part of the buyer's
purchase documents - and it's likely that the home itself would not have been built (or
supported with infrastructure) without the revenue provided by the district.
A Pre -Prop 13 Home Newer N8 Home w /CFD 90 -1 Newer NC Home
Westcliff Home
AV = $118,000
Taxes Paid:
1% = $1,180.00
AD = None
CFD = None
Meas A = $7.67
total = $1,190.00
Castaways Home
AV = $893,740
Taxes Paid:
1 % = $8,937.00
AD = $3,512.00
CFD = $667.00
Meas A = $58.04
total = $13,100.00
City gov't receives: City gov't receives:
$201 (16.9 %) $1,528 (11.6 %)
Tax Rate = 1.01 % Tax Rate = 1.47%
Pelican Hill Home
AV = $2,126,779
Taxes Paid:
1 % = $21,267.00
AD = $4,015.00
CFD = $667.00
Meas A = $137.00
total = $26,400.00
City gov't receives
$3,169 (12 %)
Tax Rate = 1.24%
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PSA with Jennifer Branin
July 27, 2004
Page 4
All that noted, several Newport Coast residents have attempted to better understand the
complexities of their County ADs in particular by communicating directly with the County of
Orange. Both the questions asked by the residents and the County's responses were
detailed and extensive. But the residents remain concerned that some AD implementation
issues deserve additional scrutiny - thus the request via the PAA for City assistance. The
City Council agreed to help because it believed that the City has a duty to both understand
the Newport Coast ADs better and to ensure that our residents in the Newport Coast are
being assessed fairly for infrastructure that the City now owns and operates.
Examples of the residents' concerns include:
• Whether it was legal to take a free road (the NW portion of Newport Coast Drive), paid
for in part by AD dollars, and convert it to a tollroad;
• The County's management of appropriate construction funds within the ADs.
• The County's use of developer fees funded by Newport Coast home purchases yet used
to build facilities in Aliso Viejo; and
• Whether or not all of the infrastructure projects funded by the ADs were clearly identified
in the ADs' engineers reports, fully constructed, and built within budgeted amounts.
In January 2003, the City retained Bill Mitchell (of Cummins and White, LLP) and Robert
Messinger (of Burke Williams & Sorenson, LLP) to review several preliminary issues,
including whether a statute of limitations had expired (it had not). The City has paid these
individuals about $14,500 ($8,300 for BW &S and $6,200 for Cummins and White) over the
last 18 months.
At my direction, Mitchell and Messinger have held off on more detailed analyses until
Jennifer Branin of Branin Finance (with whom we worked extensively in determining our
$25 million settlement amount for the Newport Coast's water and sewer service with IRWD)
finishes her finance- oriented report (as opposed to a legal issues report). I employed her
under a roughly $29,000 Letter of Agreement since December 2003.
Since December 2003, Ms. Branin has met extensively with County staff, OC Fire Authority
staff, NMUSD staff, and others to prepare a near -final report called, "Newport Coast
Funding and Financing Summary." While she encountered significant problems getting all
of the data she needed for the Summary from the County of Orange, they have been
cooperative as of late. During this process, she has met with the Newport Coast Advisory
Committee's Subcommittee on Finance about four times.
Ms. Branin's current Agreement is about complete in terms of hours and dollars.
Unfortunately, delays at the County caused her to spend significant time examining boxes
in a warehouse, tracking down documents, meeting with people two and three times
apiece, and slowly gathering the relevant data. As such, we need to allow her to expend
more resources in this effort.
This Agenda Item. The proposed PSA includes a Scope of Work as follows:
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• PSA with Jennifer Branin
July 27, 2004
Page 5
• Complete Research and Analysis of final round of County Documents;
• Finalize the draft Report ( "Newport Coast Funding and Financing Summary");
• Participate in community and subcommittee meetings (likely to be three);
• Participate in a future public, noticed Workshop with the County staff;
• Address comments following the Workshop; and
• Respond to any questions by the attorneys who will look at the Final Report.
The Final Report will be a document available to the public.
Committee Action: The Newport Coast Advisory Committee has worked with Ms. Branin
extensively and respects her work. They have not, however, reviewed this contract except
for my giving them a copy of the staff report.
Environmental Review: The City Council's approval of this Agenda Item does not require
environmental review.
Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72
hours in advance of the public meeting at which the City Council considers the item).
Funding Availability: Available with the 0110 -8080 and 0130 -8080.
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Dave Kiff
Assistant City Manager
Attachment: Professional Services Agreement with Jennifer Branin of Branin Finance
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PROFESSIONAL SERVICES AGREEMENT WITH
BRANIN FINANCE
THIS AGREEMENT is made and entered into as of this _ day of July, 2004, by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "CITY "), and
Branin Finance whose address is #9 Carnelian in Irvine, California 92614
( "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 seeks to determine fact -based information about assessment districts in
the Newport Coast.
C. CITY desires to engage Consultant to research and review facts and accounting
information about certain assessment districts in the Newport Coast ( "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 Ms.
Jennifer Branin.
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 _ day of July, 2004, and
shall terminate on the _ day of July, 2005, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED:
CONSULTANT shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
CITY may elect to delete certain tasks of the Scope of Services at its sole
discretion.
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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.
0 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.
In no-event shall Consultant's compensation exceed eighteen thousand dollars
($18,000.00) 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 invoices to CITY describing the work performed
the preceding period. 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.
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:
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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.
PROJECT MANAGER:
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to CITY at all reasonable
times during the Agreement term. Consultant has designated Jennifer Branin 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.
ADMINISTRATION:
This Agreement will be administered by the City Manager's Office. Dave Kiff
shall be the Project Administrator and shall have the authority to act for CITY
under this Agreement. The Project Administrator or his /her authorized
representative shall represent CITY in all matters pertaining to the services.to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES:
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In order to assist Consultant in the execution of its responsibilities under this
Agreement, CITY agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at CITY. CITY will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
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.
9. HOLD HARMLESS:
No provision required.
10. INDEPENDENT CONTRACTOR:
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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.
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.
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.
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.
INSURANCE:
No provision required.
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
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percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING:
The parties recognize that a substantial inducement to CITY for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
consent of CITY. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of CITY.
17. OWNERSHIP OF DOCUMENTS:
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 this Agreement are not intended or represented to be suitable for
reuse by CITY or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at CITY's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by CITY or persons other than
Consultant is waived against Consultant and CITY assumes full responsibility for
such changes unless CITY has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES:
No provision required.
19. CONFIDENTIALITY:
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless CITY authorizes in writing the release of information.
20. 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
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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.
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.
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to CITY, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
CITY to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
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.
ERRORS AND OMISSIONS:
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to CITY greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit CITY's rights under any other sections of this Agreement.
CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS:
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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:
Dave Kiff, Assistant City Manager
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658 -8915
Phone — 949 - 644 -3002
Fax — 949- 644 -3020
E -mail — dkiff @city.newport- beach.ca.us
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Ms. Jennifer Branin
Branin Finance
#9 Carnelian
Irvine, California 92614
Phone — 949 - 653 -1466
Fax — 949 - 653 -1457
28. TERMINATION:
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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:
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.
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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.
APPROVED AS TO FORM:
Robin Clauson,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Homer L. Bludau, City Manager
for the City of Newport Beach
CONSULTANT:
By: By:
LaVonne Harkless, Jennifer Branin
City Clerk Branin Finance
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
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Exhibit A
Scope of Services
1. Complete Research and Analysis of final round of County Documents (71 hours)
2. Finalize Draft Report (20 hours)
3. Participate in meetings, inlcluding preparation and travel time (12 hours)
4. Participate in workshoplforum with the County of Orange (8 hours)
5. Address post- workshop comments (6 hours)
6. Respond to questions by legal counsel (6 hours)
Total Amount of Hours = 123
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Exhibit B
Schedule of Billing Rates
Jennifer Branin, Principal = $140 /hour
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