HomeMy WebLinkAboutC-4396 - PSA for Interim Assistant City Manager Consulting ServicesAMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT WITH
MANAGEMENT PARTNERS, INC.
FOR SPECIAL PROJECTS ASSISTANCE
G THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
( "Amendment No.. One'), is entered into as of this 1't day of March, 2011, by and
between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "),
and Management Partners, Inc., a California corporation whose address is 2107 North
First Street, Ste. 470, San Jose, California 95131 ( "Consultant "), and is made with
reference to the following:
RECITALS:
A. On October 13, 2009, City and Consultant entered into a Professional Services
Agreement for Interim Assistant City Manager Consultant Services. That
agreement expired on April 1, 2010.
B. On May 25, 2010, City and Consultant entered into a new Professional Services
Agreement ( "Agreement ") for Interim Assistant City Manager Consultant, the
term of this Agreement expired September 23 ( "Project ").
C. City desires to enter into this Amendment No. One to extend the term of the
Agreement to October 1, 2011, increase the scope of services and to increase
the total compensation..
D. City and Consultant mutually desire to amend the Agreement, as provided below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 2 of the Agreement, shall be amended in its entirety and replaced with the
following: The term of the Agreement shall terminate on October 1, 2011, unless
terminated earlier as provided for in Agreement.
2. SERVICES TO BE PERFORMED
Section 3 of the Agreement, shall be supplemented to include the Scope of Services
dated February 7, 2011, 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.
COMPENSATION
The introductory paragraph to Section 4 of the Agreement shall be amended in its
entirety and replaced with the following: City shall pay Consultant for the services on a
time and expense not -to- exceed basis in accordance with the provisions of this Section
and the Schedule of Billing Rates attached to the Agreement. Consultant's total
amended compensation for all work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed One Hundred
Thousand Dollars and no /100s ($100,000.00) without prior written authorization from
City ( "Total Amended Compensation ").
3.1 The Total Amended Compensation reflects Consultant's additional
compensation for additional services to be performed in accordance with
this Amendment No. One, including all reimbursable items and
subconsultant fees, in an amount not to exceed Fifty Thousand Dollars
and no /100 ($50,000.00), without prior written authorization from City.
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants set forth
in Agreement shall remain unchanged and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
One on the dates written below.
APPROVED AS TO FORM:
OFFICE OF TkIE CITY ATTORNEY
Date: 3 5 11
By:
David R. Hunt
City Attorney
ATTEST:
Date:
By`. �Ll 2
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: Zhij -z�%,
By: -
Dave KW
City Manager
CONSULTANT: MANAGEMENT
PARTNERS, INC.
Date:
By: Q`
Gerald Newfarmer
President/ Chief Ex&ufive Officer
By:_ b Lv/'�—
aa1- AAYCu6 5 elk+mvp
-Treaftfer "ici-P \f%'M p(Glamr-
By:
Jan Perkins
Principal Consultant / Partner
Attachments: Exhibit A — Additional Services to be Performed
Exhibit A
4
MANAGEMENT PARTNERS
February 7, 2011
Mr. David A. Kiff
City Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Dear Mr. Kiff:
Thank you for the City's interest in an extension of our contract for special projects assistance
being provided by Jan Perkins. You have indicated a need for continuing assistance on an on-
call basis for special projects, particularly-in light of the significant changes underway through
restructuring the organization to meet new fiscal goals. Assignments for which Jan may be
needed for expert assistance iridude change management facilitation, analysis, training,
strategic and business planning,, problem solving, and organfzafional assessments.
Management Partners will continue to provide this on -call management assistance at a rate of
$140 per hour, which reflects a reduction of our regular consulting rate for Jan Perkins of $225
per 46 Dpring this engagement, the.,a..ctual hours worked, along With travel expenses, will be
reimbursed by the City. We are.suggesting.a not -to- exceed contract extension of $50,000. The
engagement may be extended by" mutual agreement if desired by the City.
We are happy to.continue our working relationship with the City Newport Beach. Please feel
free to call Jan Perkins, (949.202.8870) :orme if you have any questions about this proposal.
Sincerely,
M/I VA
Andrew 'S.- Belkhap
Regional ?Vice: President
Accepted•forthe City of Newport Beach by:
Name:
Tide: u4n4vi/mok,
Date:
www- Tanagbmentpa tnefs.com
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PROFESSIONAL SERVICES AGREEMENT WITH
MANAGEMENT PARTNERS, INC.
FOR INTERIM ASSISTANT CITY MANAGER CONSULTANT SERVICES
THIS AGREEMENT is made and entered into as of this 1XII day of May, 2010,
by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "),
and MANAGEMENT PARTNERS, INC., an Ohio Corporation, whose address is 2107
North First Street Suite 470, San Jose, California, 95131 ("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. The City has recruited a permanent Assistant City Manager scheduled to start in
June 2010.
C. The City Manager may authorize and approve an interim Appointment to fill a
permanent vacancy (separation or retirement). In accordance with the City's
Employee Policy Manual, adopted by Resolution 2001 -100, interim appointments
expire in six (6) months but may be extended an additional six (6) months at the
discretion of the City Manager.
D. On October 13, 2009 City and Consultant entered an Agreement for Interim
Assistant City Manager Consultant Services. That Agreement expired April 1,
2010. City and Consultant desire to enter a new Agreement to extend the
appointment for Interim Assistant City Manager thru September 23, 2010.
F. Consultant and City desire to enter into a new Professional Consulting
Agreement for the position of Interim Assistant City Manager for the City of
Newport Beach ( "Project').
G. Jan Perkins shall serve as the principal consultant for Project and perform all
Services required as the City's Interim Assistant City Manager ( "Principal
Consultant').
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. PRINCIPAL CONSULTANT
Consultant shall designate a Principal Consultant, who shall coordinate all phases of the
Project and perform services required as Interim Assistant City Manager. This Principal
Consultant shall be available to City at all reasonable times during the Agreement term.
or reassign the Principal Consultant or assign any new or replacement personnel to the
Project without the prior written consent of City.
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.
2. TERM
Subject to earlier termination as provided for in this Agreement, Principal Consultant
shall serve as Interim Assistant City Manager for a term continuing from the prior
Agreement entered October 13, 2009; commencing on April 2, 2010 and shall remain in
effect until September 23, 2010 unless terminated pursuant to Section 24 of this
Agreement or extended at the sole discretion of the City Manager.
3. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the Services described in the Scope of Services
( "Services" or "Work ") attached hereto as Exhibit A and incorporated herein by
reference. The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of Services under this Agreement and the
Services shall be performed to completion in a diligent and timely manner. The failure
by Consultant to perform the Services in a diligent and timely manner may result in
termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due to
causes beyond Consultant's reasonable control. However, in the case of any such
delay in the Services to be provided for the Project, each party hereby agrees to provide
notice to the other parry so that all delays can be addressed.
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. Consultant's compensation for all work
performed in accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed Fifty Thousand Dollars and no /100 ($50,000.00)
without prior written authorization from City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the Services
performed and /or the specific task in the Scope of Services to which it
relates, the date the Services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
Management Partners, Inc. Page 2
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 As consideration for the performance of specified Services under this
Agreement Consultant shall be compensated as follows, and as further
described in the schedule of Billing Rates attached hereto as Exhibit B
and incorporated herein by reference:
A. An hourly rate of $140.00 for hours worked pursuant to this
Agreement, $140.00 per hour (hereinafter, "hourly rate ") shall be
considered just compensation and consultant is not entitled to
additional benefits or holiday pay under this Agreement.
B. Consultant shall be paid on a monthly basis.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. All reasonable, authorized City related business expenses actually
incurred by Consultant in the performance of Services pursuant to
this Agreement. Consultant shall, to the extent possible, use a City -
issued credit card issued to pay for business expenses. Consultant
shall comply with City Council policies for expense and travel
reimbursement.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid at the hourly rate.
5. ADMINISTRATION
This Agreement will be administered by the City Manager's Department. DAVID
KIFF, CITY MANAGER 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.
6. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement, City
agrees to, where applicable, provide access to, and upon request of Consultant, one
Management Partners, Inc. Page 3
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.
7. STANDARD OF CARE
7.1 All of the Services shall be performed by Principal Consultant or under
Principal Consultant's supervision. Principal Consultant represents that it
possesses the professional and technical personnel experience to perform
the Services required by this Agreement, and that it will perform all
Services in a manner commensurate with community professional
standards. By delivery of completed work, Consultant certifies that the
work conforms to the requirements of this Agreement and all applicable
federal, state and local laws and the professional standard of care.
7.2 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.
7.3 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.
8. 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 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
Management Partners, Inc. Page 4
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.
9. 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.
10. 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.
11. 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.
12. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
13. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement, policies of insurance of the type and amounts described below and in
a form satisfactory to City.
A. Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
Management Partners, Inc. Page 5
shall be kept on file with City at all times during the term of this contract.
City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Consultant shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the work
hereunder by Consultant, his agents, representatives, employees or
subconsultants. The cost of such insurance shall be included in
Consultant's bid.
B. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A- (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
C. Coverage Requirements
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and
Employer's Liability Insurance (with limits of at least one million
dollars ($1,000,000)) for Consultant's employees in accordance
with the laws of the State of California, Section 3700 of the Labor
Code In addition, Consultant shall require each subconsultant to
similarly maintain Workers' Compensation Insurance and
Employer's Liability Insurance in accordance with the laws of the
State of California, Section 3700 for all of the subconsultant's
employees.
Any notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least thirty (30)
calendar days (ten (10) calendar days written notice of non-
payment of premium) prior to such change.
Consultant shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation, blanket
contractual liability.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
Management Partners, Inc. Page 6
less than one million dollars ($1,000,000) combined single limit for
each accident.
iv. Professional Liability (Errors & Omissions) Coveraqe. Consultant
shall maintain professional liability insurance that covers the
Services to be performed in connection with this Agreement, in the
minimum amount of one million dollars ($1,000,000) limit per claim
and in the aggregate.
D. Other Insurance Provisions or Requirements.
The policies are to contain, or be endorsed to contain, the following provisions:
Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents,
officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a
loss. Consultant hereby waives its own right of recovery against
City, and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
ii. Enforcement of Contract Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes
no additional obligations on the City nor does it waive any rights
hereunder.
iii. Requirements not Limitinq. Requirements of specific coverage
features or limits contained in this Section are not intended as a
limitation on coverage, limits or other requirements, or a waiver of
any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue and is not intended by any party
or insured to be all inclusive, or to the exclusion of other coverage,
or a waiver of any type.
iv. Notice of Cancellation. Consultant agrees to oblige its insurance
agent or broker and insurers to provide to City with thirty (30) days
notice of cancellation (except for nonpayment for which ten (10)
days notice is required) or nonrenewal of coverage for each
required coverage.
E. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Consultant's performance under this Agreement.
F. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
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judgment may be necessary for its proper protection and prosecution of
the Work.
14. 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.
15. 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.
16. 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.
17. CONFIDENTIALITY
Consultant shall hold and safeguard the Confidential Information in trust for the City and
shall not, without the prior written consent of the City, misappropriate or disclose or make
available to anyone for use outside the City at any time, either during the term of this
agreement with the City or subsequent to the termination of this agreement with the City
Management Partners, Inc. Page 8
for any reason, including, without limitation, termination by the City for cause or without
cause, any of the Confidential Information, whether or not developed by Consultant,
except as required in the performance of Consultant's duties to the City. 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.
18. 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.
19. 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.
20. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
bome by Consultant. Nothing in this paragraph is intended to limit City's rights under the
law or any other sections of this Agreement.
21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants or permanent employees in
connection with the Project.
22. 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
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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.
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.
23. 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: David Kiff
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658 -8915
Phone: 949 - 644 -3300
Fax: 949 - 644 -3020
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Gerald Newfarmer
Management Partners Inc.
2107 North First St. Suite 470
San Jose, CA 95131
Phone: (408) 437 -5400
Fax: (408) 453 -6191
24. 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.
Management Partners, Inc. Page 10
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 24 -hours 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.
Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the
Consultant to resign at any time from the Project.
No promises or representations regarding regular, full time or permanent employment
status have been made to Consultant, personnel of Consultant, and /or Principal
Consultant (collectively, "Consultant') and Consultant has no expectation of permanent
employment with the City. Furthermore, Consultant has no expectation of Civil Service
classification, rights or status under this Agreement.
25. 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.
26. 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.
27. 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.
28. 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.
Management Partners, Inc. Page 11
29. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
30. 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.
31. 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.
32. 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.
33. 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.
Management Partners, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By�b
eonie Mulvihill
Acting City Attomey '1
ATTEST:
By: "- 2
Leil9ni I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: (�-
Ddvj Kiff
City Manager
CONSULTANT: MANAGEMENT
PARTNERS, INC.
By:
Gerald Newfarme
Pr i nt/ Chief E tive Officer
By: �c.�
Am P ul
Treasurer
PRINCIPAL CONSULTANT:
n Oerkins
ri ipal Consultant/ Partner
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Management Partners, Inc. Page 13
EXHIBIT A
SCOPE OF SERVICES
Consultant shall be tasked by the City Manager to carry out the following scope of
services, including but not limited to, and not necessarily in this priority order:
• Conduct Fire Department/Lifeguard Division organizational assessment and
assist with implementation.
• Assist Administrator Services Director with project management of Performance
Based Budgeting, organizational changes in Information Technology, and other
items as requested.
• Provide training in preparing work plans and project management.
• Conduct teambuilding for City departments.
• Advise analytical groups on projects to identify significant cost savings and
organizational efficiencies.
• Assist the new Assistant City Manager with special projects as needed.
• Assist with miscellaneous assignments from the City Manager.
Management Partners, Inc. Exhibit A -Page 1
EXHIBIT B
SCHEDULE OF BILLING RATES
Management Partners shall be compensated at $140 /hour for Jan Perkins' special
projects work. No additional benefits shall be provided.
Consultant's incidental work - related expenses (parking, tolls, mileage, etc) while
working at the City shall be reimbursed by the City with proper invoices and upon
approval of the City Manager.
Management Partners, Inc. Exhibit B -Page 1
PROFESSIONAL SERVICES AGREEMENT WITH
MANAGEMENT PARTNERS, INC.
FOR INTERIM ASSISTANT CITY MANAGER CONSULTANT SERVICES
THIS AGREEMENT is made and entered into as of this Zovday of May, 2010,
by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "),
and MANAGEMENT PARTNERS, INC., an Ohio Corporation, whose address is 2107
North First Street Suite 470, San Jose, California, 95131 ("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. The City has recruited a permanent Assistant City Manager scheduled to start in
June 2010.
C. The City Manager may authorize and approve an interim Appointment to fill a
permanent vacancy (separation or retirement). In accordance with the City's
Employee Policy Manual, adopted by Resolution 2001 -100, interim appointments
expire in six (6) months but may be extended an additional six (6) months at the
discretion of the City Manager.
D. On October 13, 2009 City and Consultant entered an Agreement for Interim
Assistant City Manager Consultant Services. That Agreement expired April 1,
2010. City and Consultant desire to enter a new Agreement to extend the
appointment for Interim Assistant City Manager thru September 23, 2010.
F. Consultant and City desire to enter into a new Professional Consulting
Agreement for the position of Interim Assistant City Manager for the City of
Newport Beach ( "Project ").
G. Jan Perkins shall serve as the principal consultant for Project and perform all
Services required as the City's Interim Assistant City Manager ( "Principal
Consultant ").
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. PRINCIPAL CONSULTANT
Consultant shall designate a Principal Consultant, who shall coordinate all phases of the
Project and perform services required as Interim Assistant City Manager. This Principal
Consultant shall be available to City at all reasonable times during the Agreement term.
or reassign the Principal Consultant or assign any new or replacement personnel to the
Project without the prior written consent of City.
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.
2. TERM
Subject to earlier termination as provided for in this Agreement, Principal Consultant
shall serve as Interim Assistant City Manager for a term continuing from the prior
Agreement entered October 13, 2009; commencing on April 2, 2010 and shall remain in
effect until September 23, 2010 unless terminated pursuant to Section 24 of this
Agreement or extended at the sole discretion of the City Manager.
3. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the Services described in the Scope of Services
( "Services" or "Work ") attached hereto as Exhibit A and incorporated herein by
reference. The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of Services under this Agreement and the
Services shall be performed to completion in a diligent and timely manner. The failure
by Consultant to perform the Services in a diligent and timely manner may result in
termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due to
causes beyond Consultant's reasonable control. However, in the case of any such
delay in the Services to be provided for the Project, each party hereby agrees to provide
notice to the other party so that all delays can be addressed.
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. Consultant's compensation for all work
performed in accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed Fifty Thousand Dollars and no /100 ($50,000.00)
without prior written authorization from City.
4.1 Consultant -shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the Services
performed and /or the specific task in the Scope of Services to which it
relates, the date the Services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
Management Partners, Inc. Page 2
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 As consideration for the performance of specified Services under this
Agreement Consultant shall be compensated as follows, and as further
described in the schedule of Billing Rates attached hereto as Exhibit B
and incorporated herein by reference:
A. An hourly rate of $140.00 for hours worked pursuant to this
Agreement, $140.00 per hour (hereinafter, "hourly rate ") shall be
considered just compensation and consultant is not entitled to
additional benefits or holiday pay under this Agreement.
B. Consultant shall be paid on a monthly basis.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. All reasonable, authorized City related business expenses actually
incurred by Consultant in the performance of Services pursuant to
this Agreement. Consultant shall, to the extent possible, use a City -
issued credit card issued to pay for business expenses. Consultant
shall comply with City Council policies for expense and travel
reimbursement.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid at the hourly rate.
5. ADMINISTRATION
This Agreement will be administered by the City Manager's Department. DAVID
KIFF, CITY MANAGER 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.
6. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement, City
agrees to, where applicable, provide access to, and upon request of Consultant, one
Management Partners, Inc. Page 3
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.
7. STANDARD OF CARE
7.1 All of the Services shall be performed by Principal Consultant or under
Principal Consultant's supervision. Principal Consultant represents that it
possesses the professional and technical personnel experience to perform
the Services required by this Agreement, and that it will perform all
Services in a manner commensurate with community professional
standards. By delivery of completed work, Consultant certifies that the
work conforms to the requirements of this Agreement and all applicable
federal, state and local laws and the professional standard of care.
7.2 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.
7.3 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.
8. 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 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
Management Partners, Inc. Page 4
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.
9. 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.
10. 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.
11. 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.
12. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
13. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement, policies of insurance of the type and amounts described below and in
a form satisfactory to City.
A. Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
Management Partners, Inc. Page 5
shall be kept on file with City at all times during the term of this contract.
City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Consultant shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the work
hereunder by Consultant, his agents, representatives, employees or
subconsultants. The cost of such insurance shall be included in
Consultant's bid.
B. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A- (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
C. Coverage Requirements
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and
Employer's Liability Insurance (with limits of at least one million
dollars ($1,000,000)) for Consultant's employees in accordance
with the laws of the State of California, Section 3700 of the Labor
Code In addition, Consultant shall require each subconsultant to
similarly maintain Workers' Compensation Insurance and
Employer's Liability Insurance in accordance with the laws of the
State of California, Section 3700 for all of the subconsultant's
employees.
Any notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least thirty (30)
calendar days (ten (10) calendar days written notice of non-
payment of premium) prior to such change.
Consultant shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation, blanket
contractual liability.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
Management Partners, Inc. Page 6
less than one million dollars ($1,000,000) combined single limit for
each accident.
iv. Professional Liability (Errors & Omissions) Coverage. Consultant
shall maintain professional liability insurance that covers the
Services to be performed in connection with this Agreement, in the
minimum amount of one million dollars ($1,000,000) limit per claim
and in the aggregate.
D. Other Insurance Provisions or Requirements.
The policies are to contain, or be endorsed to contain, the following provisions:
Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents,
officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a
loss. Consultant hereby waives its own right of recovery against
City, and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
ii. Enforcement of Contract Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes
no additional obligations on the City nor does it waive any rights
hereunder.
iii. Requirements not Limiting. Requirements of specific coverage
features or limits contained in this Section are not intended as a
limitation on coverage, limits or other requirements, or a waiver of
any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue and is not intended by any party
or insured to be all inclusive, or to the exclusion of other coverage,
or a waiver of any type.
iv. Notice of Cancellation. Consultant agrees to oblige its insurance
agent or broker and insurers to provide to City with thirty (30) days
notice of cancellation (except for nonpayment for which ten (10)
days notice is required) or nonrenewal of coverage for each
required coverage.
E. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Consultant's performance under this Agreement.
F. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
Management Partners, Inc. Page 7
judgment may be necessary for its proper protection and prosecution of
the Work.
14. 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.
15. 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.
16. 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.
17. CONFIDENTIALITY
Consultant shall hold and safeguard the Confidential Information in trust for the City and
shall not, without the prior written consent of the City, misappropriate or disclose or make
available to anyone for use outside the City at any time, either during the term of this
agreement with the City or subsequent to the termination of this agreement with the City
Management Partners, Inc. Page 8
for any reason, including, without limitation, termination by the City for cause or without
cause, any of the Confidential Information, whether or not developed by Consultant,
except as required in the performance of Consultant's duties to the City. 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.
18. 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.
19. 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.
20. 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.
21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants or permanent employees in
connection with the Project.
22. 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
Management Partners, Inc. Page 9
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.
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.
23. 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: David Kiff
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658 -8915
Phone: 949 - 644 -3300
Fax: 949 - 644 -3020
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Gerald Newfarmer
Management Partners Inc.
2107 North First St. Suite 470
San Jose, CA 95131
Phone: (408) 437 -5400
Fax: (408) 453 -6191
24. 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.
Management Partners, Inc. Page 10
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 24 -hours 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.
Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the
Consultant to resign at any time from the Project.
No promises or representations regarding regular, full time or permanent employment
status have been made to Consultant, personnel of Consultant, and /or Principal
Consultant (collectively, "Consultant') and Consultant has no expectation of permanent
employment with the City. Furthermore, Consultant has no expectation of Civil Service
classification, rights or status under this Agreement.
25. 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.
26. 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.
27. 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.
28. 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.
Management Partners, Inc. Page 11
29. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
30. 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.
31. 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.
32. 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.
33. 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.
Management Partners, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
B L
eonie Mulvihill�,D
Acting City Attorney
ATTEST:
By: 4 � - k.,
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
D d Kiff
City Manager
CONSULTANT: MANAGEMENT
PARTNERS, INC.
Gerald Newfarmer
P,FesjdenU ,Qhief E utive Officer
0
rer
PRINCIPAL nCONSULTANT:
n Perkins
cipal Consultant/ Partner
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Management Partners, Inc. Page 13
EXHIBIT A
SCOPE OF SERVICES
Consultant shall be tasked by the City Manager to carry out the following scope of
services, including but not limited to, and not necessarily in this priority order:
• Conduct Fire Department/Lifeguard Division organizational assessment and
assist with implementation.
• Assist Administrator Services Director with project management of Performance
Based Budgeting, organizational changes in Information Technology, and other
items as requested.
• Provide training in preparing work plans and project management.
• Conduct teambuilding for City departments.
• Advise analytical groups on projects to identify significant cost savings and
organizational efficiencies.
• Assist the new Assistant City Manager with special projects as needed.
• Assist with miscellaneous assignments from the City Manager.
Management Partners, Inc. Exhibit A -Page 1
EXHIBIT B
SCHEDULE OF BILLING RATES
Management Partners shall be compensated at $140 /hour for Jan Perkins' special
projects work. No additional benefits shall be provided.
Consultant's incidental work - related expenses (parking, tolls, mileage, etc) while
working at the City shall be reimbursed by the City with proper invoices and upon
approval of the City Manager.
Management Partners, Inc. Exhibit B -Page 1
CITY OF NEWPORT BEACH tiHY 2
CITY COUNCIL STAFF REPORT
Agenda Item No. 9
May 25, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, City Manager
949 - 644 -3000, dkiff @newportbeachca.gov
SUBJECT: AUTHORIZATION TO ENTER INTO A PROFESSIONAL SERVICES
AGREEMENT WITH MANAGEMENT PARTNERS, INCORPORATED
FOR SPECIAL PROJECTS ASSISTANCE — JAN PERKINS
ISSUE:
Should the City Council approve entering into a contract with Management Partners,
Incorporated to provide special projects assistance in the City Manager's office and
specifically, to assign Jan Perkins, a partner in the firm, to conduct special projects?
RECOMMENDATION:
Authorize the City Manager to enter into a contract with Management Partners, Inc. to
provide professional services to the City Manager's Office at the rate of $140 per hour,
not to exceed a total amount of $50,000.
DISCUSSION:
Background:
Over the course of the last several months, the City Council, City Manager and
management team have identified a number of business process improvements and
analyses needed to improve the efficiency and effectiveness of City operations. Careful
attention has been payed to the budget, with serious cost reductions made through
reorganizations, staffing reductions, and outsourcing. Jan Perkins, a partner with the
local government consulting firm Management Partners, Inc., has been providing interim
management and project assistance to the City Manager, serving as interim Assistant
City Manager. The permanent Assistant City Manager has been hired and will begin
work in June. However, there remain several high priority projects requiring continued
attention by Jan Perkins, including the following items. Particular focus will be on the
top two items listed below to identify cost savings and improvements to efficiency and
Jan Perkins — Mgmt Partners Contract
May 25, 2010
Page 2
effectiveness. The new Assistant City Manager will be focusing her attention on other
priorities, including day -to -day operational management of the organization, and will not
have the capacity for the items listed below.
• Conduct Fire Department/Lifeguard Division organizational assessment and assist
with implementation
• Assist Administrator Services Director with project management of Performance
Based Budgeting (PBB), organizational changes in Information Technology (IT), and
other items as requested.
• Provide training to staff Citywide in preparing work plans and project management.
• Conduct teambuilding for City departments, as requested.
• Advise analytical groups on projects to identify significant cost savings and
organizational efficiencies.
• Assist the new Assistant City Manager with special projects as needed.
• Assist with miscellaneous assignments from the City Manager.
Management Partners, Inc. is a firm comprised of former city and county managers and
other professionals who specialize in working with local government leaders and
managers. Professionals in the firm carry out a full range of projects and assignments
for local governments, including strategic planning and goal setting, project
management, performance management, process improvement, organizational re-
engineering, budget analysis, feasibility studies, and teambuilding. The firm is known
for its commitment to excellence, providing practical and implementable advice, and for
the highly qualified professionals whose skills and abilities are compatible with the
needs of their clients.
Jan Perkins, a partner in the firm for the past five years, and an Orange County
resident, has 30 years of management experience in local government. She was
previously the City Manager of Fremont and Morgan Hill, CA. Prior to serving as City
Manager of those cities, she was the Assistant City Manager of Santa Ana, CA, Grand
Rapids, MI and Adrian, Ml. She is highly regarded for her expertise in organizational
assessments, performance management, business process improvements,
organizational restructuring, budget strategy, coaching, teambuilding, and strategic
planning — all of which will continue to serve the City of Newport Beach well. Ms.
Perkins holds a Master of Public Administration degree (city management
concentration) from the University of Kansas and a Certificate from the Executive
Program in State and Local Government at Harvard University. She is a Credential
Manager with the International City /County Management Association.
During the period Ms. Perkins has served Newport Beach in the interim Assistant City
Manager role, she has provided management expertise to the City Manager and other
City executives, has advised on budget process and reduction strategies, conducted an
assessment of the development services function, provided advice on change
management resulting from budget reductions and reorganizations, reviewed and
Jan Perkins — Mgmt Partners Contract
May 25, 2010
Page 3
advised on restructuring the City Manager's Office, facilitated workshops for the
Management Team and City Council, assisted with hiring key executives, and
introduced work planning practices for project management.
The contract extension will be a not -to- exceed amount of $50,000. The hourly rate to be
paid Management Partners for Ms. Perkins' assistance is $140.00. The employment
agreement will be memorialized by the City's standard Professional Services
Agreement approved by the City Attorney. It will be executed by the City Manager
pursuant to his appointing authority upon approval by the Council of this item.
Fiscal Impact: No Impact as the expense is covered by the budgeted amount for the
Assistant to the City Manager position.
Environmental Review: The City Council's approval of this Agenda item does not
require environmental review.
Public Notice: This agenda item has been noticed according to the Brown Act (72 hours
in advance of the meeting at which the Council considers the item).
Submitted by:
)� ai
Dav Kiff
City Manager
Attachments: Exhibit A
Exhibit B
Professional Services Agreement
PROFESSIONAL SERVICES AGREEMENT WITH
MANAGEMENT PARTNERS, INC.
FOR INTERIM ASSISTANT CITY MANAGER CONSULTANT SERVICES
THIS AGREEMENT is made and entered into as of this day of May, 2010,
by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "),
and MANAGEMENT PARTNERS, INC., an Ohio Corporation, whose address is 2107
North First Street Suite 470, San Jose, California, 95131 ("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. The City has recruited a permanent Assistant City Manager scheduled to start in
June 2010.
C. The City Manager may authorize and approve an interim Appointment to fill a
permanent vacancy (separation or retirement). In accordance with the City's
Employee Policy Manual, adopted by Resolution 2001 -100, interim appointments
expire in six (6) months but may be extended an additional six (6) months at the
discretion of the City Manager.
D. On October 13, 2009 City and Consultant entered an Agreement for Interim
Assistant City Manager Consultant Services. That Agreement expired April 1,
2010. City and Consultant desire to enter a new Agreement to extend the
appointment for Interim Assistant City Manager thru September 23, 2010.
F. Consultant and City desire to enter into a new Professional Consulting
Agreement for the position of Interim Assistant City Manager for the City of
Newport Beach ( "Project ").
G. Jan Perkins shall serve as the principal consultant for Project and perform all
Services required as the City's Interim Assistant City Manager ( "Principal
Consultant ").
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. PRINCIPAL CONSULTANT
Consultant shall designate a Principal Consultant, who shall coordinate all phases of the
Project and perform services required as Interim Assistant City Manager. This Principal
Consultant shall be available to City at all reasonable times during the Agreement term.
or reassign the Principal Consultant or assign any new or replacement personnel to the
Project without the prior written consent of City.
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.
2. TERM
Subject to earlier termination as provided for in this Agreement, Principal Consultant
shall serve as Interim Assistant City Manager for a term continuing from the prior
Agreement entered October 13, 2009; commencing on April 2, 2010 and shall remain in
effect until September 23, 2010 unless terminated pursuant to Section 24 of this
Agreement or extended at the sole discretion of the City Manager.
3. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the Services described in the Scope of Services
( "Services or "Work ") attached hereto as Exhibit A and incorporated herein by
reference. The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of Services under this Agreement and the
Services shall be performed to completion in a diligent and timely manner. The failure
by Consultant to perform the Services in a diligent and timely manner may result in
termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due to
causes beyond Consultant's reasonable control. However, in the case of any such
delay in the Services to be provided for the Project, each party hereby agrees to provide
notice to the other party so that all delays can be addressed.
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. Consultant's compensation for all work
performed in accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed Fifty Thousand Dollars and no /100 ($50,000.00)
without prior written authorization from City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the Services
performed and /or the specific task in the Scope of Services to which it
relates, the date the Services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
Management Partners, Inc. Page 2
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 As consideration for the performance of specified Services under this
Agreement Consultant shall be compensated as follows, and as further
described in the schedule of Billing Rates attached hereto as Exhibit B
and incorporated herein by reference:
A. An hourly rate of $140.00 for hours worked pursuant to this
Agreement, $140.00 per hour (hereinafter, "hourly rate ") shall be
considered just compensation and consultant is not entitled to
additional benefits or holiday pay under this Agreement.
B. Consultant shall be paid on a monthly basis.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. All reasonable, authorized City related business expenses actually
incurred by Consultant in the performance of Services pursuant to
this Agreement. Consultant shall, to the extent possible, use a City -
issued credit card issued to pay for business expenses. Consultant
shall comply with City Council policies for expense and travel
reimbursement.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid at the hourly rate.
5. ADMINISTRATION
This Agreement will be administered by the City Manager's Department. DAVID
KIFF, CITY MANAGER 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.
6. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement, City
agrees to, where applicable, provide access to, and upon request of Consultant, one
Management Partners, Inc. Page 3
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.
7. STANDARD OF CARE
7.1 All of the Services shall be performed by Principal Consultant or under
Principal Consultant's supervision. Principal Consultant represents that it
possesses the professional and technical personnel experience to perform
the Services required by this Agreement, and that it will perform all
Services in a manner commensurate with community professional
standards. By delivery of completed work, Consultant certifies that the
work conforms to the requirements of this Agreement and all applicable
federal, state and local laws and the professional standard of care.
7.2 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.
7.3 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.
8. 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 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
Management Partners, Inc. Page 4
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.
9. 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.
10. 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.
11. 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.
12. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
13. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement, policies of insurance of the type and amounts described below and in
a form satisfactory to City.
A. Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
Management Partners, Inc. Page 5
shall be kept on file with City at all times during the term of this contract.
City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Consultant shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the work
hereunder by Consultant, his agents, representatives, employees or
subconsultants. The cost of such insurance shall be included in
Consultant's bid.
B. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A- (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
C. Coverage Requirements
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and
Employer's Liability Insurance (with limits of at least one million
dollars ($1,000,000)) for Consultant's employees in accordance
with the laws of the State of California, Section 3700 of the Labor
Code In addition, Consultant shall require each subconsultant to
similarly maintain Workers' Compensation Insurance and
Employer's Liability Insurance in accordance with the laws of the
State of California, Section 3700 for all of the subconsultant's
employees.
Any notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least thirty (30)
calendar days (ten (10) calendar days written notice of non-
payment of premium) prior to such change.
Consultant shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation, blanket
contractual liability.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
Management Partners, Inc. Page 6
less than one million dollars ($1,000,000) combined single limit for
each accident.
iv. Professional Liability (Errors & Omissions) Coverage. Consultant
shall maintain professional liability insurance that covers the
Services to be performed in connection with this Agreement, in the
minimum amount of one million dollars ($1,000,000) limit per claim
and in the aggregate.
D. Other Insurance Provisions or Requirements.
The policies are to contain, or be endorsed to contain, the following provisions:
Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents,
officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a
loss. Consultant hereby waives its own right of recovery against
City, and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
ii. Enforcement of Contract Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes
no additional obligations on the City nor does it waive any rights
hereunder.
iii. Requirements not Limitinq. Requirements of specific coverage
features or limits contained in this Section are not intended as a
limitation on coverage, limits or other requirements, or a waiver of
any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue and is not intended by any party
or insured to be all inclusive, or to the exclusion of other coverage,
or a waiver of any type.
iv. Notice of Cancellation. Consultant agrees to oblige its insurance
agent or broker and insurers to provide to City with thirty (30) days
notice of cancellation (except for nonpayment for which ten (10)
days notice is required) or nonrenewal of coverage for each
required coverage.
E. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Consultant's performance under this Agreement.
F. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
Management Partners, Inc. Page 7
judgment may be necessary for its proper protection and prosecution of
the Work.
14. 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.
15. 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.
16. 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.
17. CONFIDENTIALITY
Consultant shall hold and safeguard the Confidential Information in trust for the City and
shall not, without the prior written consent of the City, misappropriate or disclose or make
available to anyone for use outside the City at any time, either during the term of this
agreement with the City or subsequent to the termination of this agreement with the City
Management Partners, Inc. Page 8
for any reason, including, without limitation, termination by the City for cause or without
cause, any of the Confidential Information, whether or not developed by Consultant,
except as required in the performance of Consultant's duties to the City. 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.
18. 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.
19. 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.
20. 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.
21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants or permanent employees in
connection with the Project.
22. 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
Management Partners, Inc. Page 9
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.
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.
23. 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: David Kiff
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658 -8915
Phone: 949 - 644 -3300
Fax: 949- 644 -3020
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Gerald Newfarmer
Management Partners Inc.
2107 North First St. Suite 470
San Jose, CA 95131
Phone: (408) 437 -5400
Fax: (408) 453 -6191
24. 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.
Management Partners, Inc. Page 10
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 24 -hours 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.
Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the
Consultant to resign at any time from the Project.
No promises or representations regarding regular, full time or permanent employment
status have been made to Consultant, personnel of Consultant, and /or Principal
Consultant (collectively, "Consultant') and Consultant has no expectation of permanent
employment with the City. Furthermore, Consultant has no expectation of Civil Service
classification, rights or status under this Agreement.
25. 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.
26. 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.
27. 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.
28. 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.
Management Partners, Inc. Page 11
29. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
30. 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.
31. 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.
32. 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.
33. 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.
Management Partners, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
eonie Mulvihill,
Acting City Attorney(
ATTEST:
M
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
:-
David Kiff
City Manager
CONSULTANT: MANAGEMENT
PARTNERS, INC.
0
Gerald Newfarmer
President/ Chief Executive Officer
Amy Paul
Treasurer
PRINCIPAL CONSULTANT:
M
Jan Perkins
Principal Consultant/ Partner
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Management Partners, Inc. Page 13
EXHIBIT A
SCOPE OF SERVICES
Consultant shall be tasked by the City Manager to carry out the following scope of
services, including but not limited to, and not necessarily in this priority order:
• Conduct Fire Department/Lifeguard Division organizational assessment and
assist with implementation.
• Assist Administrator Services Director with project management of Performance
Based Budgeting, organizational changes in Information Technology, and other
items as requested.
• Provide training in preparing work plans and project management.
• Conduct teambuilding for City departments.
• Advise analytical groups on projects to identify significant cost savings and
organizational efficiencies.
• Assist the new Assistant City Manager with special projects as needed.
• Assist with miscellaneous assignments from the City Manager.
Management Partners, Inc. Exhibit A-Page 1
EXHIBIT B
SCHEDULE OF BILLING RATES
Management Partners shall be compensated at $140 /hour for Jan Perkins' special
projects work. No additional benefits shall be provided.
Consultant's incidental work - related expenses (parking, tolls, mileage, etc) while
working at the City shall be reimbursed by the City with proper invoices and upon
approval of the City Manager.
Management Partners, Inc. Exhibit B -Page 1
C.. g1qiO
PROFESSIONAL SERVICES AGREEMENT WITH
MANAGEMENT PARTNERS, INC.
FOR INTERIM ASSISTANT CITY MANAGER CONSULTANT SERVICES
THIS AGREEMENT is made and entered into as of this LIP day of October,
2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and MANAGEMENT PARTNERS, INC., an Ohio Corporation, whose address
is 2107 North First Street Suite 470, San Jose, California, 95131 ("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. David Kiff, formerly the Assistant City Manager, was appointed by City Council to
serve as the City Manager, leaving a vacancy at the Assistant City Manager
level.
C. The City will be conducting recruitment for a permanent Assistant City Manager.
D. The City Manager may authorize and approve an interim Appointment to fill a
permanent vacancy (separation or retirement). In accordance with the City's
Employee Policy Manual, adopted by Resolution 2001 -100, interim appointments
expire in six (6) months but may be extended an additional six (6) months at the
discretion of the City Manager.
E. City has solicited and received a proposal from Management Partners, Inc., a
professional consulting firm that provides executive services to the public
services arena. City 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.
F. Management Partners, Inc. and City desire to enter into a Professional
Consulting Agreement for the position of Interim Assistant City Manager for the
City of Newport Beach ( "Project ").
G. Jan Perkins shall serve as the principal consultant for Project and perform
services required as the City's Interim Assistant City Manager ( "Principal
Consultant ").
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
11 .4101 Is] 1:7e1 Wolf] Z6Y1]Ni1'.kI
Consultant shall designate a Principal Consultant, who shall coordinate all phases of the
Project and perform services required as Interim Assistant City Manager. This Principal
Consultant shall be available to City at all reasonable times during the Agreement term.
Consultant has designated JAN PERKINS to be its Principal Consultant and perform
the services required as Interim Assistant City Manager. Consultant shall not remove or
reassign the Principal Consultant or assign any new or replacement personnel to the
Project without the prior written consent of City.
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.
2. TERM
Subject to earlier termination as provided for in this Agreement, Principal Consultant
shall serve as Interim Assistant City Manager for a term beginning on September 23,
2009 and shall remain in effect until April 1, 2010 unless terminated pursuant to Section
24 of this Agreement or extended at the sole discretion of the City Manager.
3. 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 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.
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. Consultant's compensation for all work
performed in accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed One Hundred Thousand Dollars and no /100
($100,000.00) without prior written authorization from City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and /or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
Page 2 of 13
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 As consideration for the performance of specified services under this
Agreement Consultant shall be compensated as follows, and as further
described in the schedule of Billing Rates attached hereto as Exhibit B
and incorporated herein by reference:
A. An hourly rate of $140.00 for hours worked pursuant to this
Agreement, $140.00 per hour (hereinafter, "hourly rate ") shall be
considered just compensation and consultant is not entitled to
additional benefits or holiday pay under this Agreement.
B. Consultant shall be paid on a monthly basis
4.3 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. All reasonable, authorized City related business expenses actually
incurred by Consultant in the performance of services pursuant to
this Agreement. Consultant shall, to the extent possible, use a City -
issued credit card issued to pay for business expenses. Consultant
shall comply with City Council policies for expense and travel
reimbursement.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid at the hourly rate.
5. ADMINISTRATION
This Agreement will be administered by the City Manager's Department. DAVID KIFF
shall be the Project Administrator and shall have the authority to act for City under this
Agreement. The Project Administrator or his /her authorized representative shall
represent City in all matters pertaining to the services to be rendered pursuant to this
Agreement.
6. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement, City
agrees to, where applicable, provide access to, and upon request of Consultant, one
Page 3 of 13
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.
7. STANDARD OF CARE
7.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner commensurate
with community professional standards. All services shall be performed
by qualified and experienced personnel who are not employed by City, nor
have any contractual relationship with City. By delivery of completed
work, Consultant certifies that the work conforms to the requirements of
this Agreement and all applicable federal, state and local laws and the
professional standard of care.
7.2 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.
7.3 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.
8. 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 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
Page 4 of 13
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.
9. 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.
10. 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.
11. 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.
12. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
13. 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
Page 5 of 13
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
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.
Page 6 of 13
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.
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.
Page 7 of 13
14. 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.
15. 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.
16. 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.
17. CONFIDENTIALITY
Consultant shall hold and safeguard the Confidential Information in trust for the City and
shall not, without the prior written consent of the City, misappropriate or disclose or make
available to anyone for use outside the City at any time, either during the term of this
agreement with the City or subsequent to the termination of this agreement with the City
for any reason, including, without limitation, termination by the City for cause or without
cause, any of the Confidential Information, whether or not developed by Consultant,
except as required in the performance of Consultant's duties to the City. All Documents,
Page 8 of 13
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.
18. 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.
19. 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.
20. 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.
21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants or permanent employees in
connection with the Project.
22. 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.
Page 9 of 13
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.
23. 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: David Kiff
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658 -8915
Phone: 949 - 644 -3300
Fax: 949 - 644 -3020
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Gerald Newfarmer
Management Partners Inc.
2107 North First St. Suite 470
San Jose, CA 95131
Phone: (408) 437 -5400
Fax: (408) 453 -6191
24. 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 parry 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 24 -hours prior written
notice to Consultant. In the event of termination under this Section, City shall pay
Page 10 of 13
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.
Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the
Consultant to resign at any time from the Project.
No promises or representations regarding regular, full time or permanent employment
status have been made to Consultant, personnel of Consultant, and /or Principal
Consultant (collectively, "Consultant ") and Consultant has no expectation of permanent
employment with the City. Furthermore, Consultant has no expectation of Civil Service
classification, rights or status under this Agreement.
25. COMPLIANCE WITH ALL LAUDS
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.
26. 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.
27. 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.
28. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the
Scope of Services or any other attachments attached hereto, the terms of this
Agreement shall govern.
29. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
Page 11 of 13
30. 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.
31. 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.
32. CONTROLLING LAND 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.
33. 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.
Page 12 of 13
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By: �� `�
David R. Hunt'
City Attorney
ATTEST:
By:
Leilani I. Brown /
City Clerk -1_�
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: �� 6'+V^ 1
D6.v Kiff
City Manager
CONSULTANT: MANAGEMENT
PARTNERS, INC.
By: 1z
Gerald Newfarme
PressldenU- Cxhief xecutive Officer
0
Amy gaul
PRINCIPAL CONSULTANT:
7
By: Z1 ✓('%U��
Jan Perkins
Pr6cipal Consultant/ Partner
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Page 13 of 13
Exhibit A
Scope of Services
Consultant shall be tasked by the City Manager to conduct the following scope of services,
including but not limited to, and not necessarily in this priority order:
1. Departmental Assessments. Scope, manage and conduct assessments of several City
departments, including:
a) Planning and Building Departments, Administrative Services Department, Police
Department (with the assistance of the Police Chief and following the transmittal of
completed investigations), others as directed by the City Manager;
b) Identify ways to utilize the City's administrative managers most effectively and engage
them in ways to strengthen their experiences and learning; and
c) Identify ways of utilizing the City's office assistants, department assistants and
administrative assistants most effectively throughout the organization.
2. Facilitation. Conduct teambuilding and goal setting with the management team,
establishing norms, values, expectations and a strategic focus for the next 6 to 12 months.
May include facilitating the Team in budget reduction discussions.
3. Implementing performance measurement and benchmarking by:
a) Provide advice about processes for strengthening the organization's culture of
performance measurement, building on previous work that has been done and creating
an implementation action plan;
b) Assist the City Manager's Office and staff in creating and implementing a plan for
communicating the City's performance and results as gauged through established
measures to the Council and public;
c) Develop and propose a longer strategic plan for the City, incorporating recent work in
performance measurement and benchmarking; and
d) Assist the new Administrative Services Director in identifying the most effective and
useful approach for incorporating performance measurement in budgeting and /or
transitioning to a program -based budget with performance measurement tied into it.
4. Budget Assistance. Assist the City Manager in the evaluation and implementation of budget
strategies to address revenue shortfalls and other budget challenges, including PERS rate
increases. May include "stop, start, continue" analyses as well as a longer -term study of
classification and compensation issues.
5. Change Management. Provide advice, coaching, and assistance in change management
planning and implementation for major initiatives.
Exhibit B
Rates
Consultant shall be compensated at $140 /hour through Management Partners. No additional
benefits shall be provided.
Consultant's incidental work - related expenses (parking, tolls, mileage, etc) while working at the
City that are typical of those that an Assistant City Manager may incur shall be reimbursed by
the City with proper invoices and upon approval of the City Manager.