HomeMy WebLinkAboutC-3850(B) - PSA for the Cost of Services Study of Commerical Tidelands Properties in the City of Newport BeachPROFESSIONAL SERVICES AGREEMENT WITH
MAXIMUS, INC. FOR THE COST OF SERVICES STUDY OF COMMERCIAL
TIDELAND PROPERTIES
IN THE CITY OF NEWPORT BEACH
THIS AGREEMENT is made and entered into as of this I7t�' day of zr, �
2006, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and MAXIMUS, INC., a Virginia corporation, whose address is
+3ZO ew6..m zovv ( "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 would like to accurately update the Master Fee Schedule as it pertains to
City tidelands. In order to do so, an analysis of the fee - for - service activities
which the Harbor Resources and appurtenant Divisions provide to the tidelands
must be performed. The consultant will identify the full costs for each fee -for-
service activity, recommend fee adjustments accordingly, identify City services
for which there may not be a current fee, determine the costs of those activities,
and recommend the addition of those fees to the Master Fee Schedule fair
market rent of its commercial tideland properties.
C. City desires to engage Consultant to conduct the services as described above
( "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 Richard
Pearl.
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:
7. TERM
The term of this Agreement shall commence on the above written date, and shall
automatically terminate on the 30th day of September, 2006, 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.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included
herein. The failure by Consultant to strictly adhere to the schedule may result in
termination of this Agreement by City.
Consultant shall prepare the work described in Exhibit "A"
within two (2) months of the execution of this Agreement.
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 basis in
accordance with the provisions of this Section and the Schedule of Billing Rates
attached hereto as Exhibit °B" and incorporated herein by reference.
Consultant's compensation for all work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall be
Twenty Thousand and no /100 Dollars ($20,000.00), plus a maximum of Two
Thousand and nol100 Dollars ($2,000.00) in expenses ( "Consultant Fee ").
Consultant's compensation shall not be greater than this amount without prior
written authorization from City. No billing rate changes shall be made during the
term of this Agreement without the prior written approval of City.
4.1 Consultant shall submit monthly statements to City describing the work
performed the preceding month. Consultant's statements shall include
the name of the person who performed the work, a detailed description of
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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. Consultant shall invoice City for completed
work in accordance to the schedule attached as Exhibit "B ".
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, in writing, by
City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit "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 Richard Pearl to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit "A" or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
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This Agreement will be administered by the City's Revenue Division. Evelyn
Tseng shall be the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to provide access to, and upon request of Consultant,
one copy of all existing relevant information on file at City. City will provide all
such materials in a timely manner so as not to cause delays in Consultant's work
schedule.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
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
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,
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without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work performed or
services provided under this Agreement (including, without limitation, defects in
workmanship) or Consultant's presence or activities conducted on the Project
(including the negligent and /or willful acts, errors and /or omissions of Consultant,
its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, vale or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
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Consultant is responsible for keeping the Project Administrator and/or her duly
authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work, Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance to City as evidence of the insurance coverage required herein.
Insurance certificates must be approved by City's Risk Manager prior to
commencement of performance or issuance of any permit. Current
certification of insurance shall be kept on file with City's at all times during
the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A- (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employers Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractors
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
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injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
L The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
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vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership 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
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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. 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.
19. 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.
20. 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.
21. 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.
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22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional expense shall be borne by
Consultant. Nothing in this paragraph is intended to limit City's rights under any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
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.
25. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant and conclusively shall
be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first -class mail,
addressed as hereinafter provided. All notices, demands, requests or approvals
from Consultant to City shall be addressed to City at:
Attn:
Revenue Division
Evelyn Tseng
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949- 644 -3153
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
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Attn: Richard Pearl
Maximus, Inc.
4320 Auburn Blvd. Suite 2000
Sacramento, CA 95841
Phone: 916 -715 -9666
26. 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.
27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. WAIVER
A waiver by either parry of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
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and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APP OVED AS TO FORM:
7,"-,-- , �l\
Aaron C. Harp
Assistant City Attorney
for the City of Newport Beach
ATTEST:
B
LaVonne Harkless,
City Clerk�a
CITY OF NEWPORT BEA
A Munrrporation
By:
Don e b
Mayor
for the City of Newport Beach
CONSULTANT:
By: iv
Attachments: Exhibit "A" — Scope of Services
Exhibit "B" — Schedule of Billing Rates
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Exhibit "A"
SCOPE OF SERVICES
Consultant shall perform the following services as part of this Agreement:
1. Review all curent and potential Harbor fee activities;
2. Determine the full costs of those activities; and
3. Recommend fee adjustments as needed.
Consultant will analyze only those fees where time -based data for services can be
obtained and use existing City data to input into Harbor fee dvelopment.
Consultant shall use two separate fee models to calculate service costs:
1. Process Analytics model for standard -time fee /cost determination for Planning,
Engineering, Fire Prevention, Police, etc. operations associated with Harbor; and
2. NEXUS model for Building and Safety fees associated with Harbor.
Each model will initially identify and define those work processes that produce Harbor
services. The second step will be to:
1. Calculate productive hourly rates;
2. Develop time /estimate data; and
3. Input volume data.
Consultant shall provide City with a draft of the user fee analysis, and three (3) copies
of the final user fee report.
If required, Consultant shall, at additional cost to the City, make presentations to the
Harbor Commission and the City Council.
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Exhibit "B"
SCHEDULE OF BILLING RATES
Consultant shall deliver the complete Harbor fee - for - service analysis study for a fixed
price of $20,000.00 plus a maximum of $2,000.00 in expenses. Consultant shall
invoice the City for complete work according to the following schedule:
Completion of user fee intial interview and data collection 40%
Delivery of final draft user fee analysis 35%
Delivery of draft user fee report 15%
Delivery of final user fee report 10%
Presentations to the City Council, Harbor Commission or other groups shall be charged
on a time and expense basis at the following hourly rates:
Vice President
$215
Director
$175
Senior Manager
$150
Manager
$140
Associate
$110
Support Staff
$75
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• • X38 / ��0� � By THE
CITY OF NEWPORT BEAC
CITY COUNCIL STAFF REPORT
JUN 13 2�q `16
Agenda Item No. Sail
June 13, 2006 e
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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL a 314
FROM: Dave Kiff, Assistant City Manager
City Manager's Office — 949 - 644 -3002
dkiff cDeity.newport- beach.ca.us
SUBJECT: HARBOR VALUATION — THREE STUDIES (ECONOMIC EVALUATION,
APPRAISAL, COST OF SERVICES STUDY); BUDGET AMENDMENT
#BA-
RECOMMENDATIONS:
1. Authorize the City Manager to execute Professional Services Agreements in
substantially similar form to the attached draft agreements with:
A. Netzer & Associates for the appraisal of commercial tideland properties within
Newport Beach;
B. Maximus, Inc. to identify and analyze cost -of- service activities pertaining to City
tidelands; and
C. Professors Hanemann and DeShazo to conduct an economic analysis of the
Lower Harbor and its assets; and
2. Approve a Budget Amendment in the amount of $119,500.00 (BA #--) from 010 -3605,
to 0310 -8080 to fund these three agreements.
DISCUSSION:
It has been ten years since the City has contracted for an independent analysis of the cost of
providing services at the City, and five years since a study of the economic value associated
with Lower Newport Bay ( "LNB ") and LNB's tidelands has been conducted.
The Beacon Bay Bill (Chapter 74 of the Statutes of 1978) and other legislation directs the City to
administer the tidelands on behalf of the people of the State of California (also referred to as our
"Tidelands Trust ") as trustee of those tidelands. The Beacon Bay Bill says the following:
(a) (Tidelands) shall be used by the city and its successors for purposes in which there is a
general statewide interest, as follows:
• Harbor Valuation
June 13, 2006
Page 2
(1) For the establishment, improvement, and conduct of a public harbor, and for the
construction, maintenance, and operation thereon of wharves, docks, piers, slips, quays,
ways, and streets, and other utilities, structures, and appliances necessary or convenient
for the promotion or accommodation of commerce and navigation.
(2) For the establishment, improvement, and conduct of public bathing beaches, public
marinas, public aquatic playgrounds, and similar recreational facilities open to the general
public; and for the construction, reconstruction, repair, maintenance, and operation of all
works, buildings, facilities, utilities, structures, and appliances incidental, necessary, or
convenient for the promotion and accommodation of any such uses.
(3) For the preservation, maintenance, and enhancement of the lands in their natural state
and the reestablishment of the natural state of the lands so that they may serve as
ecological units for scientific study, as open space, and as environments which provide
food and habitat for birds and marine life, and which favorably affect the scenery and
climate of the area.
(b) ...the city or its successors shall not, at any time, grant convey, give, or alienate the lands,
or any part thereof, to any individual, firm, public or private entity, or corporation for any
purposes whatever, except that the city or its successors may grant franchises thereon for a
period not exceeding 50 years for wharves and other public uses and purposes and may lease
the lands, or any part thereof, for terms not exceeding 50 years for purposes consistent with the
trust upon which the lands are held by the state and with the uses specified in this section.
(c) The lands shall be improved without expense to the state; provided, however, that nothing
contained in this act shall preclude expenditures for the development of the lands for the
purposes authorized by this act, by the state, or any board, agency, or commission thereof, or
expenditures by the city of any funds received for such purpose from the state or any board,
agency, or commission thereof.
(d) In the management, conduct, operation, and control of the lands or any improvements,
betterments, or structures thereon, the city or its successors shall make no discrimination in
rates, tolls, or charges for any use or service in connection therewith.
The City has interpreted the Beacon Bay .bill and other directives of the State Lands
Commission ( "SLC °) — especially the prohibition against granting, conveying, or giving the
tidelands to others without franchises or leases — as directing us to consistently seek to get fair
market value where tidelands franchises, leases, or permits are granted.
In addition, Council Policy F -7 provides that where there is a lease, concession, or similar
contract, being considered for income property, the City must conduct an appraisal to determine
the maximum or open market value of that property. All negotiations pertaining to income
property contracts shall include a review of an appraisal conducted by a reputable appraiser.
There are various types of commercial and other income - generating operations in LNB. These
include:
• Marinas • Gas docks
• Dry boat storage facilities • Mobile gas refueling vehicles
• Bait barges
• The Balboa Island Ferry
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• Charter boats, including party boats
and commercial fishing or sports -
fishing boats.
• Moorings, both shore moorings and
off -shore moorings
• Shipyards
• Boat cleaning /detailing facilities
• Piers adjacent to residences, where
the pier is rented out via a rental
41 Harbor Valuation
June 13, 2006
Page 3
agency. Piers that are for the upland
property owners' sole use are not
considered to be commercially in
use.
• Residential pier fees
• Hotel
• Yacht club
• Oceanfront encroachments
• Dory fishing and sales of fish
Some of these properties are managed via long -term leases. Others pay an annual permit fee.
The current fee schedule for these permits is attached.
City staff believes that it is long past time to analyze the resource value of the Harbor, in part to
fulfill our obligations under the Tidelands Trust, but also to ensure that we are fairly and
equitably distributing Harbor costs across Harbor uses. The attached PowerPoint presentation
— given to the City Council in January 2006 — is abbreviated from January 2006 and
summarized some of the issues involved in this Harbor valuation.
One of the issues discussed in January 2006 was the challenge of fairly valuing the Harbor and
its resources. Previous efforts — such as a detailed 1999 appraisal done by George Hamilton
Jones — were not implemented because of the complexity of the appraisal and the difficulty
(both practical and political) in applying the new values to each use. As a result of that
discussion, we concluded that we should look at the Harbor through three lenses:
A fair market value appraisal;
A cost of services study; and
The valuation of the Harbor from an economist's perspective — in other words, does the
Harbor bring a value to the community, to the region, or to adjacent properties that can
be translated into a per square foot amount?
This agenda item asks the Council's approval to enter into a separate contract for each of the
three "lenses ". A budget amendment is required as well.
Appraisal
As noted, the City regulates some of its commercial Harbor properties through Council Policy.
For example, Council Policy H -1 provides that commercial pier permit fees shall be increased
each year by CPI, and subject to a recalculation based on an appraisal every ten years (Non-
commercial piers are not subject to these fees, and mooring permit fees are increased by City
Council resolution each year).
The City must update the fees and rental amounts for, among other things, its commercial piers,
the commercial use of its non - commercial piers, its moorings, and the Balboa Yacht Basin slips,
garages and apartments. In late 2005, the City issued a Request for Proposal for a fair market
value appraisal of such properties. Based on the submissions, we recommend that the City hire
Mr. James B. Netzer to conduct a comprehensive appraisal of the fair market rental value of
these properties. Mr. Netzer's Scope of Services and proposed contract is attached.
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Tidelands Cost -of- Services Study
' Harbor Valuation
June 13, 2006
Page 4
The City has not conducted a comprehensive cost -of- services study since 1996. City staff
suspects that fees currently charged for tidelands uses are outdated and insufficient to cover the
costs of City services to those tidelands. Moreover, several services provided by the City were
not included in the 1996 study. In order to accurately update the Master Fee Schedule as it
pertains to City tidelands, the City needs to contract with an experienced consultant who will
analyze the fee - for - service activities which the Harbor Resources and appurtenant divisions
provide to the tidelands. The consultant will identify the full costs for each fee - for -service
activity, recommend fee adjustments accordingly, identify City services for which there may not
be a current fee, determine the costs of those activities, and recommend the addition of those
fees to the Master Fee Schedule.
City staff has selected Maximus, Inc. to provide this analysis. City staff has worked with
Maximus, Inc. on state mandate issues, and has first -hand knowledge of Maximus's
responsiveness and experience. The terms of agreement upon which its contract will be based
is attached.
Economic Analysis
The Harbor and related shoreline infrastructure owned and maintained by the City of Newport
Beach constitute valuable public assets that generate benefits to a variety of private parties,
including private businesses that operate along the shore and on the pier, and the members of
the public who visit the area for recreation, for entertainment, for shopping, and for business.
This particular value has never been examined. City staff recommends such an economic
analysis of City tidelands in order to: (1) ensure the sustainable management of the Harbor and
related infrastructure, and (2) ensure that the City receives a fair share of the economic value
generated by this infrastructure.
The analysis will have three components: 1) it will develop an economic basis for the City to
account for and capture some of the public benefits to private entities that are generated by City
assets; 2) it will provide examples of other publicly -owned natural assets (at all levels of
government) from which commercial entities profit and for which they pay charges or fees; and
3) it will provide the forms that charges take for specific types of commercial properties in other
harbors. The consultant will make recommendations regarding the scope, level, form and
phase -in process for a range of charges.
After reviewing several proposals, City staff selected Professor Hanemann and Professor
DeShazo's proposal for this study. Professor Hanemann analyzed the economic damages from
the loss of beach recreation after the American Trader tanker leaked several hundred thousand
gallons of crude oil into the ocean in 1990, affecting beaches from Seal Beach to Crystal Cove.
Professor Hanemann is currently a Professor of Public Policy at University of California,
Berkeley. Professor DeShazo is an Associate Professor of Public Policy at University of
California, Los Angeles, and the Associate Director for the Lewis Center for Regional Public
Policy. The terms of agreement upon which their contract will be based is attached.
Committee Input: The Finance Committee recommended the valuation study be conducted last
November, and will be examining the preliminary information submitted to city staff by the three
consultants.
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• Harbor Valuation
June 93, 2006
Page 5
Committee Review: The Harbor Commission is aware of this proposal, but because of potential
conflicts of interest, we have not asked them to comment on it.
Environmental Review: Environmental review is not required for this agenda item.
Fundino Availability: Upon approval of the recommended Budget Amendment, sufficient funds
will be available in the following account for the project:
Account Description
City tidelands fair market appraisal
Cost -of- Services Study
Economic Analysis
Submitted by:
Davf Kiff
Assistant City Manager
Account Number
Amount
0310 -8080
$42,500.00
0310 -8080
$22,000.00
0310 -8080
$55,000.00
Attachments: Draft Professional Services Agreement with Netzer & Associates
Draft Professional Services Agreement with Maximus, Inc.
Draft Professional Services Agreement with Professors Hanemann and DeShazo
Selected Portions of the January 2006 PowerPoint
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PROFESSIONAL SERVICES AGREEMENT WITH
NETZER & ASSOCIATES
FOR THE APPRAISAL OF COMMERCIAL TIDELAND PROPERTIES
IN THE CITY OF NEWPORT BEACH
THIS AGREEMENT is made and entered into as of this day of
2006, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and NETZER & ASSOCIATES, whose address is 234 E. Seventeenth Street,
Suite 209, Costa Mesa, California, 92627 ( "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 would like to gather information regarding the fair market rent or fees of
various public tidelands uses in order to establish an equitable price for such
uses. These tideland properties include the boat slips, garages and apartments
at the Balboa Yacht Basin, the City's residential and commercial piers, the
commercial use of residential piers, on -shore and off -shore moorings, the dory
fishing fleet zone, and various other tideland properties under contract with the
City.
C. City desires to engage Consultant to conduct an appraisal of the commercial
tideland properties within the City of Newport Beach ('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 James B.
Netzer.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
automatically terminate on the 31st day of August, 2006, unless terminated earlier
as set forth herein.
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2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit "A" and incorporated herein by reference.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included
herein. The failure by Consultant to strictly adhere to the schedule may result in
termination of this Agreement by City.
Consultant shall prepare the Appraisal Report (as defined in
Exhibit "A ") within Ten (10) weeks of the execution of this
Agreement.
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 Forty-Two .Thousand Five Hundred and 00/100
Dollars ($42,500.00) ( "Consultant Fee ") for its services in accordance with the
provisions of this Section. This fee is based upon Consultant's projection in
accordance with the Scope of Work and his hourly fee of One Hundred Fifty and
no /100 Dollars ($150.00). Consultant's compensation for all work performed in
accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed the Consultant Fee.
4.1 Consultant shall submit monthly status reports to City describing the work
performed the preceding month. Consultant's reports shall include the
name of the person who performed the work, a detailed 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, and the number of
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hours spent on all work billed on an hourly basis. City shall pay
Consultant no later than thirty (30) days after receipt of Consultant's
completion of the Scope of Work as described in Exhibit "A ".
4.2 City shall reimburse Consultant only for those costs or expenses specifically
approved in this Agreement, or specifically approved in advance by City.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project,. but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit "B ".
4.4 City shall pay Consultant within forty -five (45) days of Consultant's
delivery of the three (3) copies of the Appraisal Report (as defined in
Exhibit "A ") to the City.
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
is times during the Agreement term. Consultant has designated James B. Netzer
to be its Project Manager. Consultant shall not remove or reassign the Project
Manager 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's Revenue Division. Evelyn
Tseng shall be the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to provide access to, and upon request of Consultant,
one copy of all existing relevant information on file at City. City will provide all
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such materials in a timely manner so as not to cause delays in Consultant's work
schedule.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
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.
HQ151:L1Vad III * *:
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 performed or
services provided under this Agreement (including, without limitation, defects in
workmanship) 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). 0
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Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct -of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
0 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 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
0 Without limiting Consultant's indemnification of City, and prior to commencement
of work. Consultant shall obtain, provide and maintain at its own expense during
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the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance. with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest .edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain. Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general 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.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
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for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
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G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership 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. CONFIDENTIALITY
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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.
19. 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.
20. 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, at City's sole cost and expense.
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.
21. 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.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional expense shall be borne by
Consultant. Nothing in this paragraph is intended to limit City's rights under any
other sections of this Agreement.
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23.
24.
25.
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CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
CONFLICTS OF INTEREST
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.
NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant and conclusively shall
be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first -class mail,
addressed as hereinafter provided. All notices, demands, requests or approvals
from Consultant to City shall be addressed to City at:
Attn:
Revenue Division
Evelyn Tseng
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3153
Fax: 949 -644 -3073
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
26. TERMINATION
Attn: James B. Netzer
Netzer & Associates
234 E. Seventeenth St., Suite 209
Costa Mesa, CA 92627
Phone: 949- 574 -0261
Fax: 949 - 574 -0271
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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.
27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
30. 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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31. AMENDMENTS
E
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.
32. 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.
33. 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.
34. 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:
Aaron C. Harp
Assistant City Attorney
for the City of Newport Beach
ATTEST:
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LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Don Webb
Mayor
for the City of Newport Beach
CONSULTANT:
By:
James B. Netzer
Netzer & Associates
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Exhibit "A" 0
SCOPE OF SERVICES
Consultant shall perform the following services as part of this Agreement:
1. Provide a summary appraisal, rental survey, and fair market rent
recommendation ( "Appraisal Report") for the following properties or services:
a. Commercial entities operating at fixed locations on tideland properties, i.e.
gas dock operations, bait and tackle stores;
b. Commercial operations emanating from tideland properties, i.e. the
Balboa Island Ferry, Newport Bait Barge;
C. Balboa Yacht Basin, which contains approximately:
i. 200 boat slips,
ii. 3 apartments, and
iii. 31 garages;
Note: Balboa Yacht Basin is subject to the terms of Council Policy F -7.
d. Commercial piers within the City of Newport Beach; •
e. Two categories of residential piers within the City of Newport Beach,
including:
• Those which have been leased by the residential property owners
to third -party boat owners on a monthly or quarterly basis;
• Those which are used solely for personal, non - commercial use;
f. The licensing of City -owned docks, i.e. the 29th Street dock;
g. On -shore and off -shore moorings within the City of Newport Beach;
h. Oceanfront encroachments; and
i. The Dory Fisherman Fleet Zone.
2. Prepare the Appraisal Report in accordance with the Standards of Professional
Practice and the Code of Professional Ethics of the Appraisal Institute.
3. Deliver three (3) copies of the Appraisal Report to the City.
4. Meet with City in a timely manner, at City's request, in order to explain or clarify
any aspect of the Appraisal Report. 0
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Exhibit "B"
SCHEDULE OF BILLING RATES
James B. Netzer - $150.00 per hour
In the event Consultant is subpoenaed or otherwise required to give testimony or to
attend any public or private hearing, or public meeting, as a result of having prepared
the appraisal report pursuant to this Agreement, Consultant shall bill the City $250.00
per hour for attendance or testimony required.
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PROFESSIONAL SERVICES AGREEMENT WITH
MAXIMUS, INC.
FOR THE APPRAISAL OF COMMERCIAL TIDELAND PROPERTIES
IN THE CITY OF NEWPORT BEACH
THIS AGREEMENT is made and entered into as of this _ day of
2006, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
("City"), and MAXIMUS, INC., a Virginia corporation, whose address is
( "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 would like to accurately update the Master Fee Schedule as it pertains to
City tidelands. In order to do so, an analysis of the fee - for - service activities
which the Harbor Resources and appurtenant Divisions provide to the tidelands
must be performed. The consultant will identify the full costs for each fee -for-
service activity, recommend fee adjustments accordingly, identify City services
for which there may not be a current fee, determine the costs of those activities,
and recommend the addition of those fees to the Master Fee Schedule fair
market rent of its commercial tideland properties.
C. City desires to engage Consultant to conduct the services as described above
( "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 Richard
Pearl.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
• The term of this Agreement shall commence on the above written date, and shall
automatically terminate on the 30th day of September, 2006, unless terminated
earlier as set forth herein.
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2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit "A" and incorporated herein by reference.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included
herein. The failure by Consultant to strictly adhere to the schedule may result in
termination of this Agreement by City.
Consultant shall prepare the work described in Exhibit "A"
within two (2) months of the execution of this Agreement.
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 basis in
accordance with the provisions of this Section and the Schedule of Billing Rates
attached hereto as Exhibit "B" and incorporated herein by reference.
Consultant's compensation for all work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall be
Twenty Thousand and no /100 Dollars ($20,000.00), plus a maximum of Two
Thousand and no /100 Dollars ($2,000.00) in expenses ( "Consultant Fee ").
Consultant's compensation shall not be greater than this amount without prior
written authorization from City. No billing rate changes shall be made during the
term of this Agreement without the prior written approval of City.
4.1 Consultant shall submit monthly statements to City describing the work .
performed the preceding month. Consultant's statements shall include
the name of the person who performed the work, a detailed description of
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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. Consultant shall invoice City for completed
work in accordance to the schedule attached as Exhibit "B ".
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, in writing, by
City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and/or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit "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 Richard Pearl to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit "A" or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
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This Agreement will be administered by the City's Revenue Division. Evelyn
Tseng shall be the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to provide access to, and upon request of Consultant,
one copy of all existing relevant information on file at City. City will provide all
such materials in a timely manner so as not to cause delays in Consultant's work
schedule.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
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
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,
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without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work performed or
services provided under this Agreement (including, without limitation, defects in
workmanship) or Consultant's presence or activities conducted on the Project
(including the negligent and/or willful acts, errors and /or omissions of Consultant,
its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
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
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Consultant is responsible for keeping the Project Administrator and/or her duly
authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work, Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
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injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
. i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
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vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days •
written notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership 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
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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. 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.
19. 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.
20. 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.
21. 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.
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22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional expense shall be borne by
Consultant. Nothing in this paragraph is intended to limit City's rights under any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
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.
25. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant and conclusively shall
be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first -class mail,
addressed as hereinafter provided. All notices, demands, requests or approvals
from Consultant to City shall be addressed to City at:
Attn:
Revenue Division
Evelyn Tseng
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3153
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
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Attn: Richard Pearl
Maximus, Inc.
4320 Auburn Blvd. Suite 2000
Sacramento, CA_ 95841
Phone: 916 -715 -9666
26. 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.
27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
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and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
30. 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.
31. 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.
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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.
33. 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.
34. 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:
Aaron C. Harp
Assistant City Attorney
for the City of Newport Beach
ATTEST:
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Don Webb
Mayor
for the City of Newport Beach
CONSULTANT:
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By:
LaVonne Harkless,
City Clerk
By:
Its:
By:
Its:
Attachments: Exhibit "A" — Scope of Services
Exhibit "B" — Schedule of Billing Rates
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Exhibit "A"
SCOPE OF SERVICES
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Consultant shall perform the following services as part of this Agreement:
1. Review all curent and potential Harbor fee activities;
2. Determine the full costs of those activities; and
3. Recommend fee adjustments as needed.
Consultant will analyze only those fees where time -based data for services can be
obtained and use existing City data to input into Harbor fee dvelopment.
Consultant shall use two separate fee models to calculate service costs:
1. Process Analytics model for standard -time fee /cost determination for Planning,
Engineering, Fire Prevention, Police, etc. operations associated with Harbor; and
2. NEXUS model for Building and Safety fees associated with Harbor.
Each model will initially identify and define those work processes that produce Harbor
services. The second step will be to:
1. Calculate productive hourly rates;
2. Develop time /estimate data; and
3. Input volume data.
Consultant shall provide City with a draft of the user fee analysis, and three (3) copies
of the final user fee report.
If required, Consultant shall, at additional cost to the City, make presentations to the
Harbor Commission and the City Council.
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Exhibit "B"
SCHEDULE OF BILLING RATES
Consultant shall deliver the complete Harbor fee - for - service analysis study for a fixed
price of $20,000.00 plus a maximum of $2,000.00 in expenses. Consultant shall
invoice the City for complete work according to the following schedule:
Completion of user fee intial interview and data collection 40%
Delivery of final draft user fee analysis 35%
Delivery of draft user fee report 15%
Delivery of final user fee report 10%
Presentations to the City Council, Harbor Commission or other groups shall be charged
on a time and expense basis at the following hourly rates:
Vice President
$215
Director
$175
Senior Manager
$150
Manager
$140
Associate
$110
Support Staff
$75
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PROFESSIONAL SERVICES AGREEMENT WITH
MICHAEL HANEMANN AND J.R. DESHAZO
FOR AN ECONOMIC ANALYSIS OF THE HARBOR TIDELANDS
THIS AGREEMENT is made and entered into as of this day of
2006, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "Cit)(), and Professor Michael Hanemann, an individual, whose address is
, California, and Professor J.R. DeShazo, an individual,
whose address is , California,
(collectively, "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 requires an economic analysis of City tidelands in order to: (1) ensure the
sustainable management of the Harbor and related infrastructure, and (2) ensure
that the City receives a fair share of the economic value generated by this
infrastructure.
C. City desires to engage Consultant to develop the methodology and performance
of such an analysis ( "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 Professor
JR DeShazo.
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:
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The term of this Agreement shall commence on the above written date, and shall
terminate on the _ day of , 200_, unless terminated earlier as set
forth herein.
40 2. SERVICES TO BE PERFORMED
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Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included
in Exhibit "A ". 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.
3.3 The parties agree that it is extremely difficult and impractical to determine
and fix the actual damages that City will sustain should the Consultant fail
to complete the work called for in this Agreement. Should Consultant fail
to complete the work called for in this Agreement, Consultant agrees to
the deduction of liquidated damages in the sum of
($ ) per day for every day beyond the date scheduled for
completion provided in Section . Execution of this Agreement
shall constitute agreement by the City and Consultant that the sum of
($ ) per day is the minimum value of costs
and actual damages caused by the failure of Consultant to complete the
project within the allotted time. Such sum is liquidated damages and shall
not be construed as a penalty, and may be deducted from payments due
the Consultant if such delay occurs.
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 is
Billing Rates attached hereto as Exhibit "B" and incorporated herein by
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reference. Consultant's compensation for all work performed in accordance with
this Agreement, including all reimbursable items and subconsultant fees, shall be
Forty-Five Thousand and no /100 Dollars ($45,000.00) ( "Consultant Fee ").
4.1 Consultant shall submit monthly status reports to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and /or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
• B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit "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 J.R. DeShazo to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager 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.
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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 Revenue Division. Evelyn Tseng
shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator or his/her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
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, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
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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
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties ") from and
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes
of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees, disbursements and court
costs) of every kind and nature whatsoever (individually, a Claim; collectively,
"Claims "), which may arise from or in any manner relate (directly or indirectly) to
any breach of the terms and conditions of this Agreement, any work performed
or services provided under this Agreement (including, without limitation, defects
in workmanship or materials and /or design defects [if the design originated with
Consultant]) or Consultant's presence or activities conducted on the Project
(including the negligent and /or willful acts, errors and /or omissions of Consultant,
• its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
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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.
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.
CITY POLICY
Consultant shall discuss and review all
direction with City's Project Administrator
in order to ensure the Project proceeds
and policies.
PROGRESS
matters relating to policy and Project
in advance of all critical decision points
in a manner consistent with City goals
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.
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14. INSURANCE .
Without limiting Consultant's indemnification of City, and prior to commencement
of worts. Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
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D. Coverage Requirements.
. i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
'Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general 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.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
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ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City. 0
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture. 0
16. SUBCONTRACTING
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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. 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.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement of
any United States' letters patent, trademark, or copyright infringement, including
costs, contained in Consultant's drawings and specifications provided under this
Agreement.
20. 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
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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.
21. 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.
22. ERRORS AND OMISSIONS
In,the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
Would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
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
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harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
25. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Consultant to City shall be addressed to City at:
Attn:
Evelyn Tseng
Revenue Division
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3153
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention:
Phone:
Fax:
26. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure
the default, the non - defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
is 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
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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. 40
27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
30. 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.
31. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either parry by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
32. 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.
33. SEVERABILITY 0
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
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unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
34. 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.
35. 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:
City Attorney
for the City of Newport Beach
ATTEST:
By:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Mayor
for the City of Newport Beach
CONSULTANT:
By:
Michael Hanemann
L0
JR DeSchazo
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
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EXHIBIT "A"
Scope of Services
The analysis has three components:
A) The primary output of this analysis will be a report developing an economic basis for
the City to charge for facilities that it leases in and around the Harbor in a manner that
accounts for, and captures, some of the public benefits to private entities and
individuals that are generated by these City assets. This analysis extends beyond the
cost of services approach to a designing a charge policy, which the City is also
considering, and will complement it. The economic analysis clarifies why the public, as
the property owner of the harbor, may be entitled to a fair market return on any valued
added that the harbor conveys to adjacent properties.
B) As part of the analysis, Consultants will provide examples of other publicly -owned
natural assets (at all levels of government) from which commercial entities profit and for
which they pay charges or fees. This analysis will go beyond the scope of work outlined
for the appraisal of commercial and residential properties currently requested by the
City. Consultants will review public charges levied by other cities and agencies for
commercial properties in comparable locations (e.g., along the West Coast or in
Florida). Properties of specific interest will include: commercially -used piers, fueling
docks, retail stores, restaurants and housing /lodging establishments. The purpose of
this comparison is to provide a "benchmark" from which to assess the reasonableness
of existing 1) charge coverage and 2) charge levels. Consultants will also evaluate 3)
the forms that charges take for specific types of commercial properties in other harbors. .
This is important because the form that charges take may affect their public
acceptability and the completeness with which the charge reflects the public service
costs and public valued -added to commercial properties. Consultants will make
recommendations regarding the scope, level, form and phase -in process for a range of
charges.
C) In addition, Consultants will evaluate the costs of services study paying particular
attention to those "overhead costs" for services that the city provides both inside and
outside of the harbor itself. Particular attention will be paid to services render to the
uplands that spillover to significantly benefits harbor property owners. Drawing on the
existing economics literature, the consultants will evaluate the importance of these
services, which may include water quality, dredging, public safety, etc.
•
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EXHIBIT "B"
Schedule of Billing Rates
Consultant shall deliver the complete Harbor fee - for - service analysis study for a fixed
price of $45,000.00.
Presentations to the City Council, Harbor Commission or other groups shall be charged
on a time and expense basis at the following hourly rates:
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C' of Newport Beach• NO. BA- 06BA -077
BUDGET AMENDMENT
2005 -06 AMOUNT: $119,500.00
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
X Increase Expenditure Appropriations AND �X Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase expenditure appropriations for the comprehensive appraisal cost -of- services study, and economic
analysis pertaining to the City tidelands.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE Amount
Fund Account Description Debit Credit
010 3605 General Fund - Fund Balance $119,500.00.
REVENUE ESTIMATES (3601)
Fund /Division Account Description
EXPENDITURE APPROPRIATIONS (3603)
Description
Division Number 0310 City Manager
Account Number 8080 Services - Prof & Tech NOC $119,500.00
Division Number
Account Number
Division Number
Account Number
Division Number
Account Number '
Division Number
Account Number
* Automatic System Entry.
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Signed: 1yo yGac �'-
Financial Approval: Administr ive Sery ices Director Date
Signed:
Administrative roval: City Manager eate
Signed:
City Council Approval: City Clerk Date