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HomeMy WebLinkAboutC-4708 - PSA for Balboa Yacht Basin Management ServicesoO O r AMENDMENT NO. THREE TO V PROFESSIONAL SERVICES AGREEMENT WITH BASIN MARINE, INC. FOR BALBOA YACHT BASIN MANAGEMENT SERVICES THIS AMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Three") is made and entered into as of this 16th day of October, 2020 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BASIN MARINE INC, a California corporation ("Consultant"), whose address is 829 Harbor Island Drive, Suite A, Newport Beach, CA 92660, and is made with reference to the following: RECITALS A. On January 28, 2015, City and Consultant entered into a Professional Services Agreement ("Agreement") for Balboa Yacht Basin Management Services ("Project"). B. On March 1, 2019, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to increase the total compensation due to the increased volume of Work unanticipated at the time of entering into the Agreement. C. On November 19, 2019, City and Consultant entered into Amendment No. Two to the Agreement ("Amendment No. Two") to extend the term of the Agreement to January 31, 2021, and to increase the total compensation. D. The parties desire to enter into this Amendment No. Three to correct the Billing Rates, amend the Administration, Conflicts of Interest, Notices, and Claims sections, and to update the Insurance Requirements. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be deleted in its entirety and replaced to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). 2. ADMINISTRATION Section 6 of the Agreement is amended in its entirety and replaced with the following: "This Agreement will be administered by the Harbor Department. City's Harbormaster or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement." 3. CONFLICTS OF INTEREST Section 24 of the Agreement is amended in its entirety and replaced with the following: "24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seg., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant shall conform to all requirements therein. 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." 4. NOTICES Section 25.2 of the Agreement is amended in its entirety and replaced with the following: "25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Harbormaster Harbor Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658" 5. CLAIMS Section 26 of the Agreement is amended in its entirety and replaced with the following: "26.1 Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 26.2 To the extent that Consultant's claim is a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, the Parties agree to follow the Basin Marine, Inc. Page 2 dispute resolution process set forth therein. Any part of such "Claim" remaining in dispute after completion of the dispute resolution process provided for in Public Contract Code section 9204 or any successor statute thereto shall be subject to the Government Claims Act requirements requiring Consultant to file a claim in strict conformance with the Government Claims Act. To the extent that Contractor/Consultant's claim is not a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, Consultant shall be required to file such claim with the City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.)." INSURANCE Exhibit C of the Agreement shall be deleted in its entirety and replaced with Exhibit C attached hereto and incorporated herein by reference. Any reference to Exhibit C in the Agreement shall hereafter refer to Exhibit C attached hereto. 7. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Basin Marine, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. Three to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: /o /3 20 BY 7�Y on C. H n ity Atto e \p•\3 ATTEST: Date: /a a_7='O CITY OF NEWPORT BEACH, a California municipal corporation Date: OCT 19 2020 By: Gr K. Leung Ci anager ()WV CONSULTANT: Basin Marine Inc, a California corporation Date: M J/1-1 ty: DUA , Vwll�'--- :: City Clerk Signed in Counterpart By: David L. New Chief Executive Officer/ Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit B — Schedule of Billing RateE Exhibit C — Insurance Requirements Basin Marine Inc. Page 4 IN WITNESS WHEREOF, the parties have caused this Amendment No. Three to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: /n113/Zo By: �I—LfT�Y ron C. ar CityAttorn \p� � ATTEST: C��"' 0 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: Bv: Grace K. Leung City Manager CONSULTANT: Basin Marine Inc, a By: 1 David Chief [END OF SIGNATURES] Attachments: Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Basin Marine, Inc. Page 4 e EXHIBIT B SCHEDULE OF BILLING RATES Basin Marine Inc Page B-1 CITY OF NEWPORT BEACH RFP NO. 15-19 Balboa Yacht Basin Management Services Services Monthly Cost Contract Director/Manager (Dock Master) $2,950.00 Maintenance Coordinator $ 3,800.00 Dock Maintenance (Assistant Dock Master) $ 3,500.00 Office Assistant $ 2,500.00 Additional Insurance/Compliance Costs $ 920.00 Total Monthly Cost: $ 13 670.00 Total Annual Cost $16040.00 Balboa Yacht Basin (BYB) Monthly Management Services DAVE NEW (Contract DirectorManager/Doel(Master) • Oversee day-to-day marina operations and services including slip rental and rent collection. (exception: rent collection) • Manage BYB as a Clean Marina (update every two years) • Maintain regular updates with Harbor Resources staff on the status of the marina, and coordinate closely with the Finance Department on tenant status (inove- inlout) Monthly: $2,950.00 DEREK NEW (Maintenance Coordinator) • Maintain proper disposal of hazardous waste and retain associated records and waste manifests. (will not retain records— will forward them to Shannon Levin) • Prepare a quarterly newsletter to remind slip and garage renters of rules and regulations (especially those that during the last quarter were frequently violated) and to reinforce Clean Marina related issues. • Prepare a line item list (including estimated cost) of significant (greater than $1,000) repair and maintenance items to be considered by the City in their annual budget review process. • Coordutate maintenance activity with City and with Contractors for repairs and maintenance • Cooperate with the City's Newpoit Bay Copper Reduction Program at the BYB. (Information located at www coastl(eeper.org) (we implemented the current program and have a full understanding of the requirements)! • Review marine operations amorally with City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement Monthly: $3,800.00 LISA STEELE (Office Assistant) • Maintain confidentiality of records including tenancy, disputes and tenant information. Maintain accurate records and assist City in collection of debts. • Attempt to resolve all tenant versus tenant disputes, and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, Contractor shall defer to the City for final determination. • Maintain wait list for slips and garages and accept applications and deposits, • Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants • Ensure that the marina rules and regulations are provided to each new tenance and adhered to during their tenancy. • Review slip and garage renter files to ensure that the required insurance is up to date and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. Monthly: $2,500.00 RYANSANFORD (Dock Maintenance) • Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. • Keep Dock carts in order (and in good repair) • Ensure trash bins and enclosures are clean, swept and free of any hazardous materials • Inspect restrooms daily for cleanliness. Replace restroom supplies as needed. (Does not include janitorial services). • Routinely check operation of the City's public pump out facility located on premises. • Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City of further review and/or replacement. Monthly: $3,500.00 ALL • Provide excellent customer service to current tenants, slip renters, and the general public Balboa Yacht Basin - Additional Services The following additional services are separate from monthly management services, and shall be invoiced separately from the monthly management fees. Additional services shall be approved by the City's Project Manager or his/her designee prior to commencement of work. Other work or services needed from Contractor may include, but not be limited to, electrical, plumbing or carpentry on an as -needed basis as approved by the City. Any materials required for operations maintenance as approved by the City. Any other Marina -related work or services needed by subcontractors on an as -needed basis as approved by the City. This shall also include, but not be limited to, carpenters, electricians, plumbers or diving services. City's Project Manager or his/her designee shall review request and estimates prior to the commencement of Work being done by outside Contractors. Approved requests shall be invoiced accordingly, Monthly; Time and Materials (Pre -Approved by City) EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Basin Marine, Inc. Page C-1 D. Pollution Liability Insurance: Consultant shall maintain contractor's pollution liability ("CPL") insurance with limits of at least one million dollars ($1,000,000) per claim, and two million dollars ($2,000,000) general aggregate. E. Privacy Liability Insurance: Consultant shall maintain privacy liability insurance with limits of at least one million dollars ($1,000,000) per claim, and three million dollars ($3,000,000) general aggregate. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of Basin Marine, Inc. Page C-2 insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. 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. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. 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 Basin Marine, Inc. Page C-3 performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Basin Marine, Inc. Page C-4 AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT WITH BASIN MARINE, INC. FOR BALBOA YACHT BASIN MANAGEMENT SERVICES THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Two") is made and entered into as of this 19th day of November, 2019 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BASIN MARINE, INC., a California corporation ("Consultant"), whose address is 829 Harbor Island Drive, Newport Beach, Caifornia 92660, and is made with reference to the following: RECITALS A On January 28, 2015, City and Consultant entered into a Professional Services Agreement ("Agreement") for Balboa Yacht Basin Management Services ("Project"). B. On March 1, 2019, City and Consultant entered into Amendment No. One to increase the total compensation due to the increased volume of Work unanticipated at the time of entering into the Agreement. C. The parties desire to enter into this Amendment No. Two to extend the term of the Agreement to January 31, 2021 and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on January 31, 2021, unless terminated earlier as set forth herein." 2. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be replaced in its entirety with the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). Section 4.1 of the Agreement is 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 hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Million One Hundred Sixty Nine Thousand Six Hundred Forty Dollars and 00/100 ($1,169,640.00), without prior written authorization from City, No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. Two, including all reimbursable items and subconsultant fees, in an amount not to exceed One Hundred Fifty Four Thousand Four Hundred Forty Dollars and 00/100 ($154,440.00). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Basin Marine, Inc, Amendment No. Two Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: NZA41 BY: ez:� 4,— A ron C. Harp W P`s'11 City Attorney ATTEST: Date: A By: Leilani I. Brown City Clerk N'CWP F- U o �t�Fv�Ni CITY OF NEWPORT BEACH, a California municipal corporation Date: By: _ L( -4-c Diane 8. Dixon Mayor CONSULTANT: Basin Marine, Inc., a California corporation Dat�. v - 1 By: 7f David L. New Chief Executive Officer and Chief Financial Officer OF SIGNATURES] Attachments: Exhibit B — Schedule of Billing Rates Basin Marine, Inc. Amendment No. Two Page 3 EXHIBIT B SCHEDULE OF BILLING RATES Basin Marine, Inc. Amendment No. Two Page B-1 (COST FILE) CITY OF NEWPORT BEACH RFP NO. 15-19 Balboa Yacht Basin Management Services 2020 Services Month!Cost Contract Director/Manager(Dock Master $ 2,950.00 Maintenance Coordinator $ 3,400.00 Dock Maintenance (Assistant Dock Master $ 3,500.00 Office Assistant $ 2,500.00 Additional Insurance/Compliance Costs $ 520.00 Total Monthly Cost: $ 12,870.00 Total Annual Cost $1549440.00 22 SCOPE OF SERVICES Balboa Yacht Basin (BYB) Monthly Management Services DAVE NEW (Contract Director/Manager/Dock Master) • Oversee day-to-day marina operations and services including slip rental and rent collection. (exception: rent collection) • Manage BYB as a Clean Marina (update every two years) • Maintain regular updates with Harbor Resources staff on the status of the marina, and coordinate closely with the Finance Department on tenant status (move- in/out) Monthly: $2,950.00 DEREK NEW (Maintenance Coordinator) • Maintain proper disposal of hazardous waste and retain associated records and waste manifests. (will not retain records — will forward them to Shannon Levin) • Prepare a quarterly newsletter to remind slip and garage renters of rules and regulations (especially those that during the last quarter were frequently violated) and to reinforce Clean Marina related issues. • Prepare a line item list (including estimated cost) of significant (greater than $1,000) repair and maintenance items to be considered by the City in their annual budget review process. • Coordinate maintenance activity with City and with Contractors for repairs and maintenance • Cooperate with the City's Newport Bay Copper Reduction Program at the BYB. (Information located at www.coastkgeRer.org) (we implemented the current program and have a full understanding of the requirements)! • Review marine operations annually with City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement Monthly: B1 $3,400.00 LISA STEELE (Office Assistant) • Maintain confidentiality of records including tenancy, disputes and tenant information. Maintain accurate records and assist City in collection of debts. Attempt to resolve all tenant versus tenant disputes, and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, Contractor shall defer to the City for final determination. • Maintain wait list for slips and garages and accept applications and deposits. • Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants • Ensure that the marina rules and regulations are provided to each new tenance and adhered to during their tenancy. • Review slip and garage renter files to ensure that the required insurance is up to date and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. Monthly: $2,500.00 MITCHELL MELLDWOFF (Dock Maintenance) • Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. Keep Dock carts in order (and in good repair) a Ensure trash bins and enclosures are clean, swept and free of any hazardous materials • Inspect restrooms daily for cleanliness. Replace restroom supplies as needed. (Does not include janitorial services). • Routinely check operation of the City's public pump out facility located on premises. • Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City of further review and/or replacement. Monthly: $3,500.00 ALL • Provide excellent customer service to current tenants, slip renters, and the general public 24 Balboa Yacht Basin - Additional Services The following additional services are separate from monthly management services, and shall be invoiced separately from the monthly management fees. Additional services shall be approved by the City's Project Manager or his/her designee prior to commencement of work. Other work or services needed from Contractor may include, but not be limited to, electrical, plumbing or carpentry on an as -needed basis as approved by the City. Any materials required for operations maintenance as approved by the City. Any other Marina -related work or services needed by subcontractors on an as -needed basis as approved by the City. This shall also include, but not be limited to, carpenters, electricians, plumbers or diving services. City's Project Manager or his/her designee shall review request and estimates prior to the commencement of Work being done by outside Contractors. Approved requests shall be invoiced accordingly. Monthly: 25 Time and Materials (Pre -Approved by City) Q0 T V AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH BASIN MARINE, INC. FOR BALBOA YACHT BASIN MANAGEMENT SERVICES THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 1st day of March, 2019 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BASIN MARINE, INC., a California corporation ("Consultant"), whose address is 829 Harbor Island Drive, Newport Beach, Caifornia 92660, and is made with reference to the following: RECITALS A. On January 28, 2015, City and Consultant entered into a Professional Services Agreement ("Agreement") for Balboa Yacht Basin Management Services ("Project"). B. The parties desire to enter into this Amendment No. One to increase the total compensation due to the increased volume of Work unanticipated at the time of entering the Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONSULTANT Section 4.1 of the Agreement is 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 hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Million Fifteen Thousand Two Hundred Dollars and 00/100 ($1,015,200.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." 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 One Hundred Twenty Thousand Dollars and 00/100 ($120,000.00). 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: la " By: �lz— aron C. Harp N,k1N z-16•lq City Attorney ATTEST: Date:_ 3J9 9 Lellani 1. brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation By: Gr K. Leung C' Manager CONSULTANT: Basin Marine, Inc., a California corporation New Chief Executive Officer and Chief Financial Officer [END OF SIGNATURES] Basin Marine, Inc. Page 2 0 l� PROFESSIONAL SERVICES AGREEMENT WITH BASIN MARINE, INC. FOR BALBOA YACHT BASIN MANAGEMENT SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 28th day of January, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BASIN MARINE, INC., a California corporation ("Consultant'), whose address is 829 Harbor Island Drive, Suite A, Newport Beach, CA 92660, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant for Management Services for the Balboa Yacht Basin ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on January 31, 2020, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 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 within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Eight Hundred Ninety Five Thousand Two Hundred Dollars and 00/100 ($895,200.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 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. Basin Marine, Inc. Page 2 Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated David L. New to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. �d17i1i1laf+3ii:fA relit This Agreement will be administered by the Public Works Department. City's Harbor Resources Manager or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards' shall mean those standards of practice recognized by one (1) or more first- class firms performing similar work under similar circumstances. Basin Marine, Inc. Page 3 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 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, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' 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, reckless, 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). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' 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 Consultant. Basin Marine, Inc. Page 4 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. 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 of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall Basin Marine, Inc. Page 5 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 co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (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. Additionally, all material posted in cyberspace 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, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Basin Marine, Inc. Page 6 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. r'Ti>lixiTi77��? Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be Basin Marine, Inc. Page 7 borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 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. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, 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. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: David A. Webb, Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: David L. New Basin Marine, Inc. 829 Harbor Island Drive, Suite A Newport Beach, CA 92660 Basin Marine, Inc. Page 8 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written 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. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Consultant and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and Basin Marine, Inc. Page 9 requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 29. STANDARD PROVISIONS 29.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 29.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29.4 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. 29.5 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. 29.6 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. 29.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 29.8 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. Basin Marine, Inc. Page 10 29.9 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, State of California. 29.10 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, age or any other impermissible basis under law. 29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 29.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Basin Marine, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: i / I `l / 1,5 -- By: Aaron C. Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a Califor ' 7-municip- orporation Date: T �, Edward D. Se Mayor CONSULTANT: Basin Marine, Inc., a Calif nia corporation Date. 22 ,1 S BY: ks David L. New President Date: i/ -Z/ I - By: Der ew Secretary/Treasurer/Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Basin Marine, Inc. Page 12 EXHIBIT A SCOPE OF SERVICES Balboa Yacht Basin (BYB) Monthly Management Services Furnish all labor, equipment, materials, and supervision to perform BYB Management as described herein including, but not limited to, the following: • Oversee day-to-day marina operations and services including slip and garage rentals. Consultant shall collect the first month's rent upon execution of a lease agreement. First month's rent shall be determined by consultant and pro -rated should the commencement date fall on a day of the month other than the first day of such month. Upon receipt, Consultant shall forward payment to the City's Revenue Division. All other billings and collection services shall be provided by the City, however, the consultant will assist the City, to the best of their ability, to collect past due amounts from slip and garage tenants. The consultant shall also collect a pre- determined wait list fee from prospective tenants if slips are not available. • City will be responsible for management and billing of City -Owned Apartment Units. • Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. • Keep dock carts in order. • Ensure trash bins and enclosures are clean, swept and free of any hazardous materials. • Maintain proper disposal of hazardous waste, and retain associated records and waste manifests. • Inspect restrooms daily for cleanliness. Replace restroom supplies as needed. (Does not include janitorial services.) • Routinely check operation of the City's public pump out facility located on premises. • Maintain confidentiality of records including tenancy, disputes and tenant information. Maintain accurate records and assist City in collection of debts. • Attempt to resolve all tenant versus tenant disputes, and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, Contractor shall defer to the City for final determination. Basin Marine, Inc. Page A-1 • Provide excellent customer service to current tenants, slip renters, and the general public. • Maintain wait list for slips and garages and accept applications and deposits. • Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants. • Ensure that the marina rules and regulations are provided to each new tenant and adhered to during their tenancy. • Review slip and garage renter files to ensure that the required insurance is up to date and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. • Prepare a quarterly newsletter to remind slip and garage renters of rules and regulations (especially those that during the last quarter were frequently violated) and to reinforce Clean Marina related issues. • Prepare a line item list (including estimated cost) of significant (greater than $1,000) repair and maintenance items to be considered by the City in their annual budget review process. • Coordinate maintenance activity with City and with Contractors for repairs and maintenance. • Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City for further review and/or replacement- • Manage BYB as a Clean Marina. • Cooperate with the City's Newport Bay Copper Reduction Program at the BYB. (Information located at www.coastkeeper.org) • Review marina operations annually with the City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement. • Maintain regular updates with Harbor Resources staff on the status of the marina, and coordinate closely with the Finance Department on tenant status (move-in/out) Basin Marine, Inc. Page A-2 Balboa Yacht Basin — Additional Services The following additional services are separate from monthly management services, and shall be invoiced separately from the monthly management fees. Additional services shall be approved by the City's Project Manager or his/her designee prior to commencement of Work. Any other Marina Related Work or Services Other work or services needed from Contractor may include, but not be limited to, electrical, plumbing or carpentry on an as -needed basis as approved by the City. Any materials required for operations or maintenance as approved by the City. Any other Marina -related work or services needed by subcontractors on an as - needed basis as approved by the City. This shall also include, but not be limited to, carpenters, electricians, plumbers or diving services. City's Project Manager or his/her designee shall review requests and estimates prior to the commencement of Work being done by outside Contractors. Approved requests shall be invoiced accordingly. Basin Marine, Inc. Page A-3 Basin Marine, Inc. Page B-1 I ' , FRI a, - i, Balboa Yacht Basin Management Services January 9, 2014 Services Monthly Cost Contract Director/Manager (Dock Master) $2,950.00 Maintenance Coordinator $ 3,800.00 Dock Maintenance (Assistant Dock Master) $ 3,500.00 Office Assistant $ 2,500.00 Additional Insurance/Compliance Costs $ 920.00 Total Monthly Cost: $ 13,670.00 Total Annual Cost $1649040.00 Balboa Yacht Basin (BYB) Monthly Management Services DAVE NEW (Contract Director!Manager!Doch Master) • Oversee day-to-day marina operations and services including slip rental and rent collection. (exception; rent collection) • Manage BYB as a Clean Marina (update every two years) • Maintain regular updates with Harbor Resources staff on the status of the marina, and coordinate closely with the Finance Department on tenant status (meve- infout) Monthly: $2,950.00 DEREK NEW (Maintenance Coordinator) • Maintain proper disposal of hazardous waste and retain associated records and waste manifests. (will not retain recorcls — will fonvard thein to Shannon Levin) • Prepare a quarterly newsletter to remind slip and garage renters of rules and regulations (especially those that during the last quarter were frequently violated) and to reinforce Clean Marina related issues. • Prepare a line item list (including estimated cost) of significant (greater than $1,000) repair and maintenance items to be considered by the City in their annual budget review process. • Coordinate maintenance activity with City and with Contractors for repairs and maintenance • Cooperate with the City's Newport Bay Copper Reduction Program at the BYB. (Information located at www coas&eeper.ora) (ire implemented the currentprogram and have a full understanding of the requirements)! • Review marine operations annually with City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement Monthly: $3,500.00 LISA STEELS (Office Assistant) • Maintain confidentiality of records including tenancy, disputes and tenant information. Maintain accurate records and assist City in collection of debts. • Atternpt to resolve all tenant versus tenant disputes, and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, Contractor shall defer to the City for final determination. • Maintain wait list for slips and garages and accept applications and deposits. • Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants • Ensure that the marina rules and regulations are provided to each new tenance and adhered to during their tenancy. • Review slip and garage renter files to ensure that the required insurance is up to date and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. Monthly: $2,500.00 RYAN SANFORD (Dock Maintenance) • Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. • Keep Dock carts in order (and in good repair) • Ensure trash bins and enclosures are clean, swept and free of any hazardous materials • Inspect restrooms daily for cleanliness. Replace restroom supplies as needed. (Does not include janitorial services). • Routinely check operation of the City's public pump out facility located on premises. • Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City of further review and/or replacement. Monthly: $3,500.00 ALL • Provide excellent customer service to current tenants, slip renters, and the general public Balboa Yacht Basin - Additional Services The following additional services are separate from monthly management services, and shall be invoiced separately from the monthly management fees. Additional services shall be approved by the City's Project Manager or his/her designee prior to commencement of work. Other work or services needed from Contractor may include, but not be limited to, electrical, plumbing or carpentry on an as -needed basis as approved by the City. Any materials required for operations maintenance as approved by the City. Any other Marina -related work or services needed by subcontractors on an as -needed basis as approved by the City. This shall also include, but not be limited to, carpenters, electricians, plumbers or diving services. City's Project Manager or his/her designee shall review request and estimates prior to the commencement of Work being done by outside Contractors. Approved requests shall be invoiced accordingly, Monthly: Time and Materials (Pre -Approved by City) EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. if Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. 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. B. General Liability Insurance. Consultant shall maintain commercial general. liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Basin Marine, Inc. Page C-1 D. Pollution Liability Insurance: Consultant shall maintain contractor's pollution liability ("CPL") insurance with limits of at least one million dollars ($1,000,000) per claim, and two million dollars ($2,000,000) general aggregate. E. Privacy Liability Insurance: Consultant shall maintain privacy liability insurance with limits of at least one million dollars ($1,000,000) per claim, and three million dollars ($3,000,000) general aggregate. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at anytime. Basin Marine, Inc. Page C-2 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. 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. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. N. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own Basin Marine, Ina Page C-3 judgment may be necessary for its proper protection and prosecution of the Work. Basin Marine, Inc. Page C-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 1/27/15 Dept./Contact Received From: Lauren/Raymund Date Completed: 1/30/15 Sent to: Lauren/Raymund By: Chris Company/Person required to have certificate: Basin Marine Inc. Type of contract: All Others GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 3/1/14-311/15 A. INSURANCE COMPANY: Travelers Property Casualty Company B. AM BEST RATING (A-: VII or greater): A++:XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No II. AUTOMOBILE LIABILITY 1,000,000/2,000,000 + D. LIMITS (Must be $1 M or greater): What is limit provided? 5,000,000 Umbrella E. ADDITIONAL INSURED ENDORSEMENT—please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must AM BEST RATING (A-: VII or greater) A:XV include): Is it included? (completed Operations status does ADMITTED COMPANY (Must be California Admitted): not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 COMPLETED OPERATIONS ENDORSEMENT (completed UM, $2M min for Waste Haulers): What is limits provided? 1,000,000 Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City N/A F. its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be ❑ N/A ❑ Yes N No H. included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 3/1/14-3/1115 A. INSURANCE COMPANY: Mid -Century Insurance Company B. AM BEST RATING (A-: VII or greater) A:XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? N Yes ❑ No D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes N No H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 10/1/14-10/1/15 A. INSURANCE COMPANY: Security National Insurance Company B. AM BEST RATING (A-: VVI or greater): A:XI C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory Z Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) 1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? 0 Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY (EFF 1/28/15-1/28/16) V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO WHICH ITEMS NEED TO BE COMPLETED? Approved: 3�415 1/30/15 Agent of Alliant Insurance Services Date Broker of record for the City of Newport Beach 0 N/A ❑ Yes ❑ No IN - ■ RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _ Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: $10,000 deductible approved by Sheri on 9/4/13. Approved: Risk Management Date * Subject to the terms of the contract. r J" AMENDMENT NO. ONE TO e PROFESSIONAL SERVICES AGREEMENT WITH BASIN MARINE, INC. FOR BALBOA YACHT BASIN MANAGEMENT THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 27th day of November, 2013 ("Effective Date'), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BASIN MARINE, INC., a California corporation ("Consultant'), whose address is 829 Harbor Island Drive, Newport Beach, CA 92660, and is made with reference to the following: RECITALS A. On January 11, 2011, City and Consultant entered into a Professional Services Agreement ("Agreement') for dock management services for the 172 slips, docks, restrooms, parking lots, grounds and trash enclosures of Balboa Yacht Basin located at 829 Harbor Island Drive, Newport Beach, California ('Project'). B. The term of the Agreement expires on January 31, 2014. C. City desires to enter into this Amendment No. One to continue services in 2014 to add services not previously included in the Agreement, to extend the term of the Agreement to January 31, 2015 and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 114:7IT, Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on January 11, 2011, and shall terminate on January 31, 2015, unless terminated earlier as set forth herein." 2. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be superseded and replaced with the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). The City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be superseded and replaced with the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). The introductory Paragraph to Section 4 of the Agreement is 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 hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Three Hundred Ninety Eight Thousand Five Hundred Eighty Four Dollars and 00/100 ($398,584.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." 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 One Hundred Fifty One Thousand Nine Hundred Ninety Six Dollars and 00/100 ($151,996.00). 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Basin Marine, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTPRINEY'S OFFICE a California municipal cor oration Date: Date: By: V� By: Aaron C. Harp1/0 Keith D. Curry City Attorney Mayor ATTEST: 'a . 10 Date: c By: Leilani I. Brown City Clerk CONSULTANT: California corgof Date_ 17 � Basin Marine, Inc., a tion By: Dave " -New President Date: 121611 By Derek New Treasurer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Basin Marine, Inc. Page 3 EXHIBIT A SCOPE OF SERVICES MONTHLY MANAGEMENT SERVICES The following Services encompass the monthly management Services to be provided by Consultant. • Oversee day to day marina operations and services including slip rental and rent collection. • Manage BYB as a Clean Marina. • Cooperate with the City's Cooper Reduction Program at the BYB. • Maintain confidentiality of records including tenancy, disputes, and tenant information. • Prepare a line item list (including estimated cost) of significant (greater than $1,000) repair and maintenance items to be considered by the City in their annual budget review process. • Attempt to resolve all tenant versus tenant disputes and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, refer to City for final determination. • Coordinate maintenance activity with City and with contractors for repairs and maintenance. • Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City for further review and/ or replacement. Loss of material adjacent to the bulkhead is a significant safety issue in this marina and will be carefully monitored. • Ensure that the marina rules and regulations are provided to reach new tenant and adhered to during their tenancy. • Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants. • Review marina operations annually with City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement. • Maintain orderly records of marina and BYB property. • Maintain wait list for slips and garages and accept applications and deposits. Basin Marine, Inc. Page A-1 • Maintain confidentiality of records including tenancy, disputes and tenant information. • Maintain accurate records and assist City in collections of debts. • Review slip and garage renter files to ensure that the required insurance is up to date, and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. • Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. • Keep dock cars in order. • Ensure trash bins and enclosures are clean, swept and free of any hazardous materials. • Maintain proper disposal of hazardous waste and retain associated records and waster manifests. • Inspect restrooms daily for cleanliness. Replace restroom supplies as needed. (Does not include janitorial services.) • Provide excellent customer service to current tenants, slip renters, and general public. 11. ADDITIONAL SERVICES The following additional Services will be invoiced separately from the monthly management fees. All Additional Services shall be approved by City Staff prior to commencement of Work. 1. Any other Marina Related Work or Services. Other Work or services needed from Basin Marine will include but may not be limited to electrical, plumbing or carpentry on an as needed basis as approved by City Staff. 2. Any materials required for operations or maintenance as approved by City Staff. 3. Any other Marina -Related Work or Services needed by subcontractors on an as needed basis as approved by City Staff. Other work or services included but may not be limited to, carpenters, electricians, plumbers or diving services. City Staff will review requests and estimates prior to Work being done by outside contractors. Approved requests will be invoiced accordingly. 4. Pumpout Inspections: Pumpout inspections will be billed at $160 per day, as requested by City Staff. Basin Marine, Inc. Page A-2 EXHIBIT B SCHEDULE OF BILLING RATES I. MONTHLY MANAGEMENT SERVICES Contract Director/Manager/ Doc Master (Dave New): $1,200/ month • Oversee day to day marina operations and services including slip rental and rent collection. • Manage BYB as a Clean Marina. • Cooperate with the City's Cooper Reduction Program at the BYB. • Maintain confidentiality of records including tenancy, disputes, and tenant information. • Prepare a line item list (including estimated cost) of significant (greater than $1,000) repair and maintenance items to be considered by the City in their annual budget review process. • Attempt to resolve all tenant versus tenant disputes and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, refer to City for final determination. Maintenance Coordinator (Derek New): $1,501/ month • Coordinate maintenance activity with City and with contractors for repairs and maintenance. • Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City for further review and/ or replacement. Loss of material adjacent to the bulkhead is a significant safety issue in this marina and will be carefully monitored. • Ensure that the marina rules and regulations are provided to reach new tenant and adhered to during their tenancy. • Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants. • Review marina operations annually with City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement. Basin Marine, Inc. Page B-1 Office Assistant (Lisa Steele): $1,180/ month Maintain orderly records of marina and BYB property. + Maintain wait list for slips and garages and accept applications and deposits. + Maintain confidentiality of records including tenancy, disputes and tenant information. + Maintain accurate records and assist City in collections of debts. • Review slip and garage renter files to ensure that the required insurance is up to date, and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. Assistant Dock Master: $2,952/ month + Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. • Keep dock cars in order. • Ensure trash bins and enclosures are clean, swept and free of any hazardous materials. + Maintain proper disposal of hazardous waste and retain associated records and waster manifests. Inspect restrooms daily for cleanliness. Replace restroom supplies as needed. (Does not include janitorial services.) • Provide excellent customer service to current tenants, slip renteres, and general public. U, ADDITIONAL SERVICES Additional Services shall be billed on a time and materials basis. Labor shall be billed at $115 per hour for Work performed between 8:00 a.m. and 5:00 p.m., Monday thru Friday and at time and a half ($172.50 per hour) for work performed after 5:00 p.m., Monday thru Friday and on Saturdays and Sundays. Materials shall be invoiced accordingly at cost to Consultant. Total expenditures for Additional Services shall not exceed $70,000.00 per year without written amendment to the Agreement. The City's Project Administrator shall be authorized to provide verbal acceptance of proposals for Services anticipated to cost up to $1,000 (including labor and materials). Basin Marine, Inc. Page BE Proposals for Services estimated to cost $1,000 or greater shall require a written letter proposal from the Consultant and written acceptance of the City's Project Administrator Once authorized to proceed, Consultant shall diligently perform the Services in the approved proposal. Work that is outside of the Scope of Work described in the proposal shall not be performed without authorization. �J Basin Marine, Inc. Page BM 1 I PROFESSIONAL SERVICES AGREEMENT WITH BASIN MARINE, INC. FOR BALBOA YACHT BASIN MANAGEMENT THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement') is made and entered into as of this day of , 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ("City"), and BASIN MARINE, INC., a California corporation ("Consultant'), whose address is 829 Harbor Island Drive, Newport Beach, CA 92660 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning on utilizing a marine facilities management company to provide marina management services for the Balboa Yacht Basin. C. City desires to engage Consultant to provide dock management services for the 172 slips, docks, restrooms, parking lots, grounds and trash enclosures of Balboa Yacht Basin located at 829 Harbor Island Drive, Newport Beach, California ("Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be David L. New. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on January 31, 2014 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Work" or "Services"). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the Services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand -delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the Services on a time and expense not -to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Eight -Two Thousand, One Hundred Ninety -Six Dollars and no/100 ($82,196.00) per year, for three years through January 31, 2014. The total compensation shall not exceed Two Hundred Forty -Six Thousand, Five Hundred Eighty -Eight Dollars and no/100 ($246,588.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be Professional Services Agreement Page 2 limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated David L. New to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Shannon Levin, as Harbor Resources Supervisor, or her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. Professional Services Agreement Page 3 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. B. Provide blueprinting and other Services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, Professional Services Agreement Page 4 and employees (collectively, the "Indemnified Parties') from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. Professional Services Agreement Page 5 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance 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 Professional Services Agreement Page 6 State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: i. 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 Professional Services Agreement Page 7 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 judgment may be necessary for its proper protection and prosecution of the Work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power, or twenty- five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the Work to be performed under this Agreement without the prior written authorization of City. Professional Services Agreement Page 8 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written -authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. Professional Services Agreement Page 9 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Professional Services Agreement Page 10 Attn: Shannon Levin Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949-644-3041 Fax: 949-723-0589 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: David L. New Basin Marine, Inc. 829 Harbor Island Drive Newport Beach, CA 92660 Phone: 949-673-0360 Fax: 949-673-0625 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, 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. Professional Services Agreement Page 11 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. 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. 30. 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. 31. 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. 32. 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. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. Professional Services Agreement Page 12 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE F�T�E CITY ATTORNEY Date: (/ B y Leonie Mulvihill Assistant City Attorney ATTEST: Date: /-4-/t B V14'�tj x r y Leilani I. Brown r> City Clerk 1tj, \l M ORNIP-- CITY OF NEWPORT BEACH, A Califor is municipal corporation Date: By: Michael F. Henn Mayor CONSULTANT: BASIN MARINE, INC., a Califo _ i Corporation Date: I I By: David we President Date: j / ! ?/t I By: Derekf Treasurer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Professional Services Agreement EXHIBIT A September 15, 2010 City of Newport Beach Harbor Resources Office Attention - Shannon -Levin 829 Harbor Island Drive Newport Beach, CA 92660 SUBJECT: Proposal for Balboa Yacht Basin Management To Whom It May Concern: The attached proposal for the management of the Balboa Yacht Basin at 829 Harbor Island Drive, in Newport Beach, California is presented this date by Basin Marine, Inc. Basin Marine, Inc. is a third generation, family owned business that has been doing business in the Balboa Yacht Basin since 1939. Being a full service boat yard located adjacent to the marina, we are afforded the ability to most effectively manage the marina and the needs of its tenants. This proposal provides a summary of our qualifications, marine experience, and our understanding of the scope of work to be done. The associated costs of fulfilling these requirements with proficiency, and in complete compliance with regulations are also included. The combination of having over 70 years experience in the marine industry, our proximity to the Balboa Yacht Basin, and our established rapport with both city officials and the tenants makes us the logical choice for the management of this facility. The proposed price is valid for a period of a minimum of three (3) years. The contract director and manager is David L. New, and will be managed from Basin Marine, Inc. located at 829 Harbor Island Drive, Newport Beach, CA 92660. Should you require any additional information or have any questions please contact me directly. Sincerely, President fM The intent of this Scope of Work is to provide management of the Balboa Yacht Basin marina and City facilities at 829 Bayside Drive, Newport Beach. SCOPE OF SERVICES Furnish all labor, equipment, materials, and supervision to perform BYB Management as described herein including, but not limited to, the following: A. Oversee day to day marina operations and services including slip rental and rent collection. B. Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. C. Keep dock carts in order. D. Ensure trash bins and enclosures are clean, swept and free of any hazardous materials. E. Maintain proper disposal of hazardous waste and retain associated records and waste manifests. F. Inspect restrooms daily for cleanliness. Replace restroom supplies as needed. Does not include janitorial service. G. Provide excellent customer service to current tenants, slip renters; and general public. H. Maintain orderly records of marina and BYB property. I. Maintain wait list for slips and garages and accept applications and deposits. J. Coordinate maintenance activity with City and with contractors for repairs and maintenance. K. Prepare a line -item list (including estimated cost) of significant (greater than $1000) repair and maintenance items to be considered by the City in their annual budget review process. L. Manage BYB as a Clean Marina and have marina certified within time frame not to exceed 18 months (www. clean marinascalifornia.org). M. Cooperate with the City's Newport Bay Copper Reduction Program at the BYB. (Information located at www.coastkeeper.org) N. Maintain confidentiality of records including tenancy, disputes, and tenant information. O. Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants. P. Ensure that the marina rules and regulations are provided to each new tenant and adhered to during their tenancy. Q. Attempt to resolve all tenant versus tenant disputes and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, refer to City for final determination. R. Maintain accurate records and assist City in collections of debts. S. Maintain the security camera system and keep electronic files for a period of not less than three months and assist the Newport Beach Police Department in reviewing files regarding suspected crimes committed in the marina. T. Conduct monthly meter readings and coordinate billing with Revenue Division. U. Conduct routine inspections of the City's public pump out facilities according to California Regional Water Quality Control Board R8-2003- 0017 and monthly inspections of privately owned, publicly available pump out facilities in Newport Harbor according to California Regional Water Quality Control Board Order R8-2005-011. V. Review marina operations annually with the City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement. W. Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City for further review and/or replacement. Loss of material adjacent to the bulkhead is a significant safety issue in this marina and should be carefully monitored. X. Review slip and garage renter files to ensure that the required insurance is up to date and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. Y. Prepare a quarterly newsletter to remind slip and garage renters of rules and regulations (especially those which during the last quarter were frequently violated) and to reinforce Clean Marina related issues. CITY OF NEWPORT BEACH REQUEST FOR PROPOSAL BALBOA YACHT BASIN MANAGEMENT (COST BREAKDOWN) Contract Director/Manager/Dock Master (Dave New): $1,200.00/month • Oversee day to day marina operations and services including slip rental and rent collection. •. Manage BYB as a Clean Marina and have marina certified within time frame not to exceed 18 months if possible, and if budget for same exists. • Cooperate with the City's Newport Bay Copper Reduction Program at the BYB. • Maintain confidentiality of records including tenancy, disputes, and tenant information. MONTHLY COST: $ 600.00 • Prepare a quarterly newsletter to remind slip and garage renters of rules and regulations (especially those which during the last quarter were frequently violated) and to reinforce Clean Marina related issues. MONTHLY COST: $ 150.00 • Prepare a line item list (including estimated cost) of significant (greater than $1,000.00) repair and maintenance items to be considered by the City in their annual budget review process. MONTHLY COST: $ 300.00 • Attempt to resolve all tenant versus tenant disputes and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, refer to City for final determination. MONTHLY COST: $ 150.00 TOTAL MONTLY COST: Dock Master/Manager $1,200.00 Maintenance Coordinator (Derek New): • Coordinate maintenance activity with City and with contractors for repairs and maintenance. MONTHLY COST: $ 335.00 • Maintain the security camera system and keep electronic files for a period of not less than three months and assist the Newport Beach Police Department in reviewing files regarding suspected crimes committed in the marina. MONTHLY COST: $ 170.00 • Conduct monthly meter readings and, coordinate billing with Revenue Division. MONTHLY COST: $ 336.00 • Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City for further review and/or replacement. Loss of material adjacent to the bulkhead is a significant safety issue in this marina and will be carefully monitored. MONTHLY COST: $ 330.00 • Ensure that the marina rules and regulations are provided to each new tenant and adhered to during their tenancy. • Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants. • Review marina operations annually with City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement. MONTHLY COST: $ 330.00 Office Assistant (Lisa Steele): • Maintain orderly records of marina and BYB property. MONTHLY COST: $ 510.00 • Maintain wait list for slips and garages and accept applications and deposits. • Maintain confidentiality of records including tenancy, disputes, and tenant information. MONTHLY COST: $ 330.00 • Maintain accurate records and assist City in collections of debts. MONTHLY COST: $ 170.00 • Review slip and garage renter files to ensure that the required insurance is up to date, and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. MONTHLY COST: $ 170:00 TOTAL MONTHLY COST: Maintenance Coordinator &Ofc. Assistant: $2,681.00 Assistant Dock Master (to be determined): $2952.00 • Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. MONTHLY COST: $ 738.00 • Keep dock carts in order. MONTHLY COST: $ 369.00 • Ensure trash bins and enclosures are clean, swept and free of any hazardous materials. • Maintain proper disposal of hazardous waste and retain associated records and waste manifests. MONTHLY COST: • Inspect restrooms daily for cleanliness. (Does not include janitorial services). MONTHLY COST: $ 738.00 Replace restroom supplies as needed. $ 369.00 • Provide excellent customer service to current tenants, slip renters, and general public, MONTHLY COST: $ 738.00 TOTAL MONTHLY COST: Assistant Dock Master: $ 2,952.00 (Addition to Proposal) Assistant Dock Master Conduct routine inspections of the City's public pump out facilities according to California Regional Water Quality Control Board R8-2003-0017 and monthly inspections of privately owned, publicly available pump out facilities in Newport Harbor according to California Regional Water Quality Control Board Order R8- 2005-011. MONTHLY COST: $200.00 ORGANIZATION Derek New Maintenance Coordinator David New Contract Director/ Dock Master To Be Determined Assistant Dock Master David New (Contract Director/Manager and Dock Master): - Over see all aspects of contract. Lisa Steele Office Assistant Derek New (Maintenance Coordinator): - Respond to any complaints pertaining to dock cleanliness, safety, compliance, etc. - Maintenance coordination with City and approved contractors. - Meter reading to be coordinated with Revenue Division. Lisa Steele (Office Assistant) - Responsible for all record keeping. - Maintain Files. - Compliance/reporting to agencies. To Be Determined (Dock Master) - Responsible for day to day marina operations and services. - Report to above.