HomeMy WebLinkAboutC-4708 - PSA for Balboa Yacht Basin Management ServicesoO
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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.