HomeMy WebLinkAboutC-3832 - PSA for Harbor Resources Support Services3 832
AMENDMENT NO. 2
TO
PROFESSIONAL SERVICES AGREEMENT WITH
LARRY PAUL AND ASSOCIATES
FOR
HARBOR RESOURCES SUPPORT SERVICES
THIS AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 12th day of November, 2008, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ("CITY"), and LARRY PAUL AND
ASSOCIATES, a sole proprietorship, whose address is 2967 Michelson Drive, G244
Irvine, California, 92612 ("Consultant"), and is made with reference to the following:
RECITALS:
A. On Agust 22, 2006, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT", for
environmental services consulting for Harbor Resources Project implementation,
hereinafter referred to as "PROJECT".
B. CITY and CONSULTANT entered into AMENDMENT NO. 1 to the Agreement on
November 30, 2007 for an amount not to exceed $46,000, to reflect additional
services not included in the AGREEMENT and to extend the term of the
AGREEMENT to December 31, 2008.
C. CITY desires to enter into this AMENDMENT NO. 2 to reflect additional services
not included in the AGREEMENT and to extend the term of the AGREEMENT to
December 31, 2009. Under Item 1 of the AGREEMENT, the term of the
AGREEMENT is renewable annually for the three years based on the availability
of budgeted funds. The City has sufficient funds budgeted and desires to renew
the AGREEMENT for the second of the allowable three years.
D. CITY desires to compensate CONSULTANT for additional professional services
needed for PROJECT.
E. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 2", as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. In addition to the services to be provided pursuant to the AGREEMENT,
CONSULTANT shall diligently perform all the services described in
AMENDMENT NO. 2 including, but not limited to, all work set forth in the Scope
of Services attached hereto as Exhibit A and incorporated herein by reference.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
2. City shall pay Consultant for the services on a time and expense not -to -exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached to the AGREEMENT. Consultant's compensation for all
work performed in accordance with this AMENDMENT NO. 2, including all
reimbursable items and subconsultant fees, shall not exceed Forty Six
Thousand and no/100 Dollars ($46,000.00) without prior written authorization
from City.
3. The term of the AGREEMENT shall be extended to December 31, 2009.
4. Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 2
on the date first above written. _
APPROVED AS TO FORM:
✓v---- C ,---
City Attorney
for the City of Newport Beach
ATTEST:
EM
WN .. 190
N
Edward D. Selich, Mayor
for the City of Newport Beach
CONSULTANT:
Larry Paul
City Clerk Nv,
U
'Pall
ri
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
EXHIBIT A
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPMENT
October 1, 2008
Mr. Chris Miller
Manager, Harbor Resources Division
City of Newport Beach
3300 Newport Blvd
Newport Beach, Ca 92663
Dear Chris,
I propose the following scope of work for the City of Newport Beach's Harbor Resources
Division. The work will be centered on consulting services for inter -governmental
collaboration, project development, and project implementation for the following
projects.
1. Maintenance dredging of the federal and non-federal channels in the Lower
Newport Bay.
2. Federal funding issues associated with the Newport Bay project.
3. Development of funding and implementation strategies for the Harbor
Management plan to include items of interest to the Harbor Commission.
4. Assistance for the development of a remediation plan for the Rhine Channel.
5. Provide strategy and assistance for coastal and harbor related projects of priority
to the City.
6. Provide assistance for Dredged disposal issues.
7. Provide strategy for Confined Aquatic Disposal sites.
It may be expected that pre -approved travel expenses would be incurred for travel to
Sacramento and Washington D.C. for an amount of approximately $2,000. The total
contract cost will not exceed $46,000 for the period of November 1, 2008 through
December 31, 2009.
ere y,
arryP
Larry Paul
949.439.1455
IarrypauIand assoc.corn
2967 Michelson Drive G244 Irvine, CA 92612
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPMENT
October 1, 2007
Mr. Chris Miller
Manager, Harbor Resources Division
City of Newport Beach
3300 Newport Blvd
Newport Beach, Ca 92663
Dear Tom,
The following is my scheduled billing rate:
Larry Paul - $ 168.00 per hour.
Sincerely,
Larry Paul
Larry Paul
949.439,1455
]arrypaLila ndassoc.com
2967 Michelson Drive G244 Irvine, CA 92612
EXHIBIT B
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No.
January 13, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
(949) 644 -3002, dkiff(cDcitv.newport- beach.ca.us
Chris Miller, Harbor Resources Manager
(949) 644 -3043, cmiller(a)-citv.newport- beach.ca.us
SUBJECT: Professional Services Agreement — Amendment No. 2 with Larry
Paul and Associates to Assist Harbor Resources with Inter -
Governmental Collaboration and Project Development /
Implementation
ISSUE:
Should the City authorize Amendment No. 2 of a Professional Services Agreement with
Larry Paul and Associates to assist Harbor Resources by providing consulting services
for inter - governmental collaboration and project development and implementation?
RECOMMENDATION:
Approve Amendment No. 2 to the Professional Services Agreement with Larry Paul and
Associates for $46,000 to provide project support to Harbor Resources.
DISCUSSION:
On August 22, 2006, the City of Newport Beach entered into a 12 -month professional
services agreement with Larry Paul and Associates to provide program and project
support to the Harbor Resources Division, The not -to- exceed contract price was
$50,000. Subsequently in 2008, the City entered into Amendment No. 1 with Larry Paul
and Associates for identical services for $46,000. During this time, City staff has greatly
benefited from Larry Paul's experience and ability to work through the various harbor
issues with the regulatory agencies.
SCOPE OF WORK:
Larry Paul proposes to provide Harbor Resources and other City staff with assistance on
the following projects:
1. Maintenance dredging of the federal and non- federal channels in the Lower
Newport Bay.
PSA with Larry Paul and Associates
January I3, 2009
Page 2
2. Federal funding issues associated with the Lower Say project.
3. Development of funding and implementation strategies for the Harbor Area
Management Plan (HAMP) to include items of interest to the Harbor
Commission.
4. Assistance for the development of a remediation plan for the Rhine Channel.
5. Provide strategy and assistance for coastal and harbor related projects of priority
to the City.
6. Provide assistance for dredged disposal issues.
7. Provide strategy for Confined Aquatic Disposal sites.
TERMS OF THE AMENDMENT:
Amendment No. 2 will commence on November 1, 2008 and expire on December 31,
2009. Funding has been budgeted in the 2008 -2009 FY in account 2371 -8080.
ENVIRONMENTAL REVIEW
The City Council's approval of this item does not require environmental review.
PUBLIC NOTICE
This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in
advance of the public meetings at which the City Council considers the item). It was
posted at City Hall and on the City's website.
Submitted by:
&, V,
Dav Kiff
Assistant City Manager
Prepared by:
�Ar 41
Chris Miller
Harbor Resources Manager
Attachments:
Exhibit 1: Amendment No. 2 — Larry Paul Contract
Exhibit 2: Original Contract
PSA with Larry Paul and Associates
January 13, 2009
Page 3
Exhibit #1
AMENDMENT NO.2
TO
PROFESSIONAL SERVICES AGREEMENT WITH
LARRY PAUL AND ASSOCIATES
FOR
HARBOR RESOURCES SUPPORT SERVICES
THIS AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 12"' day of November, 2008, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "CITY"), and LARRY PAUL AND
ASSOCIATES, a sole proprietorship, whose address is 2967 Michelson Drive, G244
Irvine, California, 92612 ( "Consultant"), and is made with reference to the following:
RECITALS:
A. On August 22, 2006, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT ", for
environmental services consulting for Harbor Resources Project implementation,
hereinafter referred to as 'PROJECT".
B. CITY and CONSULTANT entered into AMENDMENT NO. 1 to the Agreement on
November 30, 2007 for an amount not to exceed $46,000, to reflect additional
services not included in the AGREEMENT and to extend the term of the
AGREEMENT to December 31, 2008,
C. CITY desires to enter into this AMENDMENT NO. 2 to reflect additional services
not included in the AGREEMENT and to extend the term of the AGREEMENT to
December 31, 2009. Under Item 1 of the AGREEMENT, the term of the
AGREEMENT is renewable annually for the three years based on the availability
of budgeted funds. The City has sufficient funds budgeted and desires to renew
the AGREEMENT for the second of the allowable three years.
D. CITY desires to compensate CONSULTANT for additional professional services
needed for PROJECT.
E. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 2 ", as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. In addition to the services to be provided pursuant to the AGREEMENT,
CONSULTANT shall diligently perform all the services described in
AMENDMENT NO. 2 including, but not limited to, all work set forth in the Scope
of Services attached hereto as Exhibit A and incorporated herein by reference.
PSA with Larry Paul and Associates
January 13, 2009
Page 4
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
2. City shall pay Consultant for the services on a time and expense not -to-
exceed basis in accordance with the provisions of this Section and the Schedule
of Billing Rates attached to the AGREEMENT. Consultant's compensation for all
work performed in accordance with this AMENDMENT NO. 2, including all
reimbursable items and subconsultant fees, shall not exceed Forty Six
Thousand and no1100 Dollars ($46.000.00) without prior written authorization
from City.
3. The term of the AGREEMENT shall be extended to December 31, 2009.
4. Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 2 on
the date first above written.
072 3*1747-1-1 ffel 3OT:7 S
David Hunt, City Attorney
for the City of Newport Beach
ATTEST:
Leilani Brown,
City Clerk
Attachments: Exhibit A — Scope of Services
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Edward D. Selich, Mayor
for the City of Newport Beach
CONSULTANT:
Exhibit B — Schedule of Billing Rates
Larry Paul
PSA with Larry Paul and Associates
January 13, 2009
Page 5
Exhibit A
Scope of Services
LARRY PAUL AN A8,800AAS,
WATUSI ED & ("$.TA4 Ai).,tGT DCVELI)f+MENT
October 11 2008
A!fr::iIirieMTer
Manager, Harbor Itesour¢esDiuisipn
CYty:otNewport.$eacli
3300 Newport$lvtl:
Newport Beach; Ca92G63'
Dear Claris,
I .Propose the following scope of work for the City of Newport Beach's Harbor; Resources
Division. The work will be centered on consulting services for inter- govettunental
collaboration, project developroeat, andproject implementation lot the following -
projects.
I- Maintenance dredging of the federal•and aon- federal channels in the Lower
Newport Hay:
2 Yedmalfundirigissues 'sssoclatedwitl the�lewpoitHayPrajtct. I'll 3. DeveY went of
op fiwd1 1. , Id imp Yeilieifitatton sr ategles for tfle;Fiarbor
Tviatnigentent plan to iudlude tterps ofntsrest to t}e HBrlwr Ctinaatission:
4: Assistance fo? the devetoproeat of a remediation'pfan t2rr the Rhine Chaateel:
5. Provide.strategy and assistance for �9astal and harbor related projects of priority
to the City.
6. Provide' assistaace for Diedgeddisposalissues.
7. Provide strategy-for Confined Aquatic Disposal sites.
It may be expected that pre - ;approved travel,expenses would be incurred for travel to -
Sacramento and Washington7).C. for an amount of approximately $2,000. The total '
eontnWtcost Will not exceed $46,000 for the period of November .1, 2008,through
December 31, 2009.
ere ys .
Larry Pdui'
499:439.1455
farrypa u la ndassoc.com
207 MidieBOn,Ur1ve G244 livlae. CA 92612
PSA with Larry Paul and Associates
January 13, 2009
Page 6
Exhibit B
Billing Rates
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL YROJECT.DEVELUPMENT
mi. Chtig t 6lidr
'Mmagff, Hubor Pcesowcos Nvisim.
�City, 6f,Newport
. ,Bekh,
3306Newpt AtW
Newport Be" Ca,92663
Dear Tom,
T-L-.following is TnyschecWedbilling mt-:
Larry Paul. - S W.VO per.hour.
lsi *el
L'arry.pWA
Larry Paul
949,439.1455
1Brryp&U1&ndasw.com .
2967 4414helson VriV.0 Q44 lf.WnG CA 926 r2
PSA with Larry Paul and Associates
January 13, 2009
Page 7
Exhibit #2
Original Contract
PROFESSIONAL SERVICES AGREEMENT WITH
Larry Paul and Associates
For
Harbor Resources Support Services
THIS AGREEMENT is made and entered into as of this 22nd day of August, 2006, by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and Larry Paul and
Associates an environmental services consultant whose address is 2967 Michelson Drive, G244,
Irvine, California, 92612 ( "Consultant'), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B Larry Paul and Associates is an environmental services consulting firm
that specializes in intergovernmental relations and project implementation.
C. City desires to retain the services of a consultant to assist in Harbor Resources
project implementation for:
1. Maintenance dredging of the federal channels in Lower
Newport Bay. Assistance in securing funding and keeping
the Corps of Engineers committed to completing the project
in accordance with a mutually agreed upon schedule is
needed.
2.Funding and implementation of the Upper Newport Bay Ecosystem
Restoration Project. Assistance in (1) working with local state and
federal elected officials to acquire project funding; (2) developing a
consensus on how to phase in the work that can be accomplished
with allotted funds; (3) negotiating with CMANC members to
ensure the project is ranked high - priority relative to other statewide
projects; (4) keeping Corps of Engineers on track to complete a
multi - fiscal year project per the construction schedule is required.
3.Development of a Harbor Area Management Plan implementation
plan strategy. Assistance is needed to negotiate a balanced
valuation of beneficial uses among competing resources agency
interests to ensure successful completion of the Harbor Area
Management Plan.
4.Assistance in finalizing the renewal of Regional General Permit
Number 54 for the programmatic approval of small local dredging
projects. Negotiations are complete with Resource Agency staff for
PSA with Larry Paul and Associates
January 13, 2009
Page S
renewal of the permits. Assistance is now needed to ensure permits
progress smoothly through the various boards and commissions.
5.4ssistance in developing a Remediation Plan Strategy for the
Rhine Channel. The Rhine Channel has been named a toxic hot
spot by the State Water Resources Control Board and studies have
been completed to determine the extent of contamination.
Assistance with the development of remediation strategy is needed
to ensure that an environmentally acceptable clean -up is
developed that is fundable with local state and federal assistance.
6.Assistance in promoting better coordination and cooperation
with the Orange County Sheriff's Harbor Patrol on enforcement
and operations issues. Assistance in developing a new
cooperative agreement with the Harbor Patrol for mooring
administration is needed in this task.
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 Larry Paul,
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:
TERM
The term of this Agreement shall commence on the above written date, and shall terminate
on the 30th day of June, 2007, unless tenninated earlier as set forth herein. This agreement
is renewable annually for three years based on the availability of budgeted funds.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of Services
attached hereto as Exhibit A and incorporated herein by reference. The City may elect to
delete certain tasks of the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and 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.
PSA with Larry Paul and Associates
January 13, 2009
Page 9
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 Fifty Thousand and no /100 Dollars
($50,00.00) without additional authorization from City. No billing rate changes shall be
made during the term of this Agreement without the prior written approval of City.
4.1 Consultant shall submit 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 advance by City. Unless
otherwise approved, such costs shall be limited and include nothing more than
the following costs incurred by Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this Agreement,
which have been approved in advance by City and awarded in
accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work perfoned without
the prior written authorization of City. As used herein, "Extra Work" means any
work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the
parties did not reasonably anticipate would be necessary at the execution of this
Agreement. Compensation for any authorized Extra Work shall be paid in
accordance with the Schedule of Billing Rates as set forth in Exhibit B.
4.4 Notwithstanding any other provision of this Agreement, when payments made by
City equal 90% of the maximum fee provided for in this Agreement, no further
5.
6.
PSA wUh Larry Pau[andAssvciates
January 13, 2009
Page 10
payments shall be made until City has accepted the final work under this
Agreement.
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 Larry Pau! to be its Project Manager.
Consultant shall not remove or reassign the Project Manager or any personnel listed in
Exhibit A or assign any new or replacement personnel to the Project without the prior
written consent of City. City's approval shall not be unreasonably withheld with respect to
the removal or assignment of non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
ADMINISTRATION
This Agreement will be administered by the Harbor Resources Division. Tom
Rossmiller shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator or his/her authorized representative
shall represent City in all matters pertaining to the services to be rendered pursuant to
this Agreement.
CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's work schedule.
B. Provide blueprinting and other services through City's reproduction company for
bid documents. Consultant will be required to coordinate the required bid documents
with City's reproduction company. All other reproduction will be the responsibility of
Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new facilities
or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this Agreement,
and that it will perform all services in a manner commensurate with community
professional standards. All services shall be performed by qualified and
experienced personnel who are not employed by City, nor have any contractual
relationship with City.
8.2 Consultant represents and warrants to City that it has or shall obtain all licenses,
permits, qualifications, insurance and approvals of whatsoever nature that are
legally required of. Consultant to practice its profession. Consultant further
PSA with Larry Paul and Associates
January 13, 2009
Page 11
represents and warrants to City that Consultant shall, at its sole cost and
expense, keep in effect or obtain at all times during the term of this Agreement,
any and all licenses, permits, insurance and other approvals that are legally
required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible
for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, or acts of God, or the failure of City to furnish timely
information or to approve or disapprove Consultant's work promptly, or delay or
faulty performance by City, contractors, or governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, agents and employees
(collectively, the "Indemnified Parties ") from and against any and all claims (including,
without limitation, claims for bodily injury, death or damage to property), demands,
obligations, damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including, without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever (individually, a
Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or
indirectly) to any work performed or services provided under this Agreement (including,
without limitation, defects in workmanship or materials and /or design defects [if the
design originated with Consultant]) or Consultant's presence or activities conducted on
the Project (including the negligent and /or willful acts, errors and /or omissions of
Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to
indemnify the Indemnified Parties from any Claim arising from the sole negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed
as authorizing any award of attorney's fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless of whether
any insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this Agreement
that may appear to give City the right to direct Consultant as to the details of the
Performance or to 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
PSA with Larry Paul and Associates
January 13, 2009
Page 12
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the work to
be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project direction
with City's Project Administrator in advance of all critical decision points in order to
ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and/or his/her duly
authorized designee informed on a regular basis regarding the status and progress of the
Project, activities performed and planned, and any meetings that have been scheduled or
are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of work.
Consultant shall obtain, provide and maintain at its own expense during the term of this
Agreement, a policy or policies of liability insurance of the type and amounts described
below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of insurance with
original endorsements to City as evidence of the insurance coverage required
herein. Insurance certificates must be approved by City's Risk Manager prior to
commencement of performance or issuance of any permit. Current certification of
insurance shall be kept on file with City's at all times during the term of this
Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its behalf shall
sign certification of all required policies.
C. Acceotable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
D. Coverage Requirements
L Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Emptoyer's Liability Insurance for
his or her employees in accordance with the laws of the State of
California. In addition, Consultant shall require each subcontractor to
similarly maintain Workers' Compensation Insurance and Employer's
Liability Insurance in accordance with the laws of the State of California
for all of the subcontractors employees. Any notice of cancellation or
non - renewal of all Workers' Compensation policies must be received by
City at least thirty (30) calendar days (10 calendar days written notice of
non- payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed by
Consultant for City.
PSA with Larry Paul and Associates
January 13, 2009
Page 13
ii. General Liability Coverage. Consultant shall maintain
commercial general liability insurance in an amount not less than one
million dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation, contractual
liability. If commercial general liability insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall
apply separately to the work to be performed under this Agreement, or
the general aggregate limit shall be at least twice the required
occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage for all
activities of the Consultant arising out of or in connection with work to be
performed under this Agreement, including coverage for any owned,
hired, non -owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit for each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
not be required to maintain professional errors and omissions insurance
for those tasks listed in Recital C above. If additional tasks are assigned
under this Agreement, then the City shall review those tasks relative to
the need for professional errors and omissions insurance. If a task
determined by the City to require professional errors and omissions
insurance is accepted by the Consultant, then the Consultant shall
maintain professional errors and omissions insurance, which covers the
services to be performed in connection with this Agreement in the
minimum amount of one million dollars ($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance policy
shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees, agents
and volunteers are to be covered as additional insureds with respect to
liability arising out of work performed by or on behalf of the Consultant.
This policy shall be considered primary insurance as respects to City, its
elected or appointed officers, officials, employees, agents and volunteers
as respects to all claims, losses, or liability arising directly or indirectly
from the Consultant's operations or services provided to City. Any
insurance maintained by City, including any self- insured retention City
may have, shall be considered excess insurance only and not
contributory with the insurance provided hereunder.
iii. This insurance shall act for each insured and additional insured as though
a separate policy had been written for each, except with respect to the
limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected or
appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to Clt its elected o. appointed officers,
officials, employees, agents or volunteers.
PSA with Larry Paul and Associates
January 13, 2009
Page 14
vi. The insurance provided by this policy shall not be suspended, voided,
canceled, or reduced in coverage or in limits, by either party except after
thirty (30) calendar days (10 calendar days written notice of non - payment
of premium) written notice has been received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of
claim made or suit instituted arising out of or resulting from Consultant's
performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance, which in its own judgment may
be necessary for its proper protection and prosecution of the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be provided
under this Agreement shall not be assigned, transferred contracted or subcontracted out
without the prior written approval of City. Any of the following shall be construed as an
assignment: The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture
or syndicate or cotenancy, which shall result in changing the control of Consultant.
Control means fifty percent (50 %) or more of the voting power or twenty-five percent
(25 %) or more of the assets of the corporation, partnership or joint - venture.
16. SUBCONTRACTING
City and Consultant agree that subconsultants may be used to complete the work
outlined in the Scope of Services. The subconsultants authorized by City to perform work
on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for
all acts and omissions of the subcontractor. Nothing in this Agreement shall create any
contractual relationship between City and 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. 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
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
PSA uxith Larry Pau! and Associates
January 13, 2009
Page 15
for such changes unless City has given Consultant prior notice and has received from
Consultant written consent for such changes.
98. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer or
architect in charge of or responsible for the work. City agrees that Consultant shall not
be liable for claims, liabilities or losses arising out of, or connected with (a) the
modification or misuse by City, or anyone authorized by City, of CADD data; (b) the
decline of accuracy or readability of CADD data due to inappropriate storage conditions
or duration; or (c) any use by City, or anyone authorized by City, of CADD data for
additions to this Project, for the completion of this Project by others, or for any other
Project, excepting only such use as is authorized, in writing, by Consultant. By
acceptance of CADD data, City agrees to indemnify Consultant for damages and liability
resulting from the modification or misuse of such CADD data. All original drawings shall
be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a
CD, and should comply with the City's digital submission requirements for Improvement
Plans. The City will provide AutoCAD file of City Title Sheets. All written documents
shall be transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept confidential
unless City authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his/her judgment
as a design professional and is supplied for the general guidance of City. Since
Consultant has no control over the cost of labor and material, or over competitive bidding
or market conditions, Consultant does not guarantee the accuracy of such opinions as
compared to contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers, representatives and
employees against any and all liability, including costs, for infringement of any United
States' letters patent, trademark, or copyright infringement, including costs, contained in
Consultant's drawings and specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed
under this Agreement. Consultant shall maintain complete and accurate records with
respect to the costs incurred under this Agreement and any services, expenditures and
disbursements charged to City, for a minimum period of three (3) years, or for any longer
period required by law, from the date of final payment to Consultant under this
Agreement. All such records and invoices shall be clearly identifiable. Consultant shall
allow a representative of City to examine, audit and make transcripts or copies of such
records and invoices during regular business hours. Consultant shall allow inspection of
all work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
PSA with Larry Paul and Associates
January 13, 2009
Page 16
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of the
dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or his /her designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this paragraph is intended to limit City's rights under any other
sections of this Agreement,
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the work performed
under this Agreement, and (2) prohibits such persons from making, or participating in
making, decisions that will foreseeably financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do
so constitutes a material breach and is grounds for immediate termination of this
Agreement by City. Consultant shall indemnify and hold harmless City for any and all
claims for damages resulting from Consultant's violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant and conclusively shall be
deemed served when delivered personally, or on the third business day after the deposit
thereof in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from Consultant to City
shall be addressed to City at:
Attention: Tom Rossmiller
Harbor Resources Division
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 -644 -3041
Fax: 949 -723 -0589
trossmiller fa>citv.newport- beach.ca. us
PSA unth Larry Paul and Associates
January 13, 2009
Page 17
All notices, demands, requests or approvals from CITY to Consultant shall be addressed
to Consultant at:
Attention: Larry Paul
Larry Paul and Associates
2967 Michelson Drive, G244
Irvine, CA 92612
Phone: (949) 439 -1455
lawrence. naul(asbcglobal. net
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in default
in the performance of this Agreement. If such default is not cured within a period of two
(2) calendar days, or if more than two (2) calendar days are reasonably required to cure
the default and the defaulting party fails to give adequate assurance of due performance
within two (2) calendar days after receipt of written notice of default, specifying the nature
of such default and the steps necessary to cure such default, the non - defaulting party
may terminate the Agreement forthwith by giving to the defaulting party written notice
thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion and
without cause, of terminating this Agreement at any time by giving seven (7) calendar
days prior written notice to Consultant. In the event of termination under this Section, City
shall pay Consultant for services satisfactorily performed and costs incurred up to the
effective date of termination for which Consultant has not been previously paid. On the
effective date of termination, Consultant shall deliver to City all reports, Documents and
other information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state, county
or municipal, whether now in force or hereinafter enacted. In addition, all work prepared
by Consultant shall conform to applicable City, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the Project
Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant or condition contained herein, whether of the same or a different
character.
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements
of whatsoever kind or nature are merged herein. No verbal agreement or implied
covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
PSA with Larry Pau! and Associates
January 13, 2009
Page 18
In the event there are any conflicts or inconsistencies between this Agreement and the
Scope of Services or any other attachments attached hereto, the terms of this Agreement
shall govern.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by
both Consultant and City and approved as to form by the City Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
36. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to
it and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not discriminate
against any subcontractor, employee or applicant for employment because of race,
religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and
year first written above.
APPROVED AS TO FORM:
City Attorney
for the City of Newport Beach
ATTEST:
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Homer Bludau,
City Manager
for the City of Newport Beach
CONSULTANT:
By: By: _
City Clerk — Lavonne Harkless L
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Paul
AMENDMENT NO.2
TO
PROFESSIONAL SERVICES AGREEMENT WITH
LARRY PAUL AND ASSOCIATES
FOR
HARBOR RESOURCES SUPPORT SERVICES
THIS AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT, Is
entered into as of this 12th day of November, 2008, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "CITY"), and LARRY PAUL AND
ASSOCIATES, a sole proprietorship, whose address is 2967 Michelson Drive, G244
Irvine, California, 92612 ( "Consultant"), and is made with reference to the following:
RECITALS:
A. On Agust 22, 2006, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT', for
environmental services consulting for Harbor Resources Project implementation,
hereinafter referred to as "PROJECT ".
B. CITY and CONSULTANT entered Into AMENDMENT NO. 1 to the Agreement on
November 30, 2007 for an amount not to exceed $46,000, to reflect additional
services not included in the AGREEMENT and to extend the term of the
AGREEMENT to December 31, 2008.
C. CITY desires to enter into this AMENDMENT NO. 2 to reflect additional. services
not Included in the AGREEMENT and to extend the term of the AGREEMENT to
December 31, 2009. Under Item 1 of the AGREEMENT, the term of the
AGREEMENT is renewable annually for the three years based on the availability
of budgeted funds. The City has sufficient funds budgeted and desires to renew
the AGREEMENT for the second of the allowable three years.
D. CITY desires to compensate CONSULTANT for additional professional services
needed for PROJECT.
E. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 2 ", as provided here below.
NOW, THEREFORE, it Is mutually agreed by and between the undersigned parties as
follows:
1. In addition to the services to be provided pursuant to the AGREEMENT,
CONSULTANT shall diligently perform all the services described in
AMENDMENT NO. 2 including, but not limited to, all work set forth in the Scope
of Services attached hereto as Exhibit A and incorporated herein by reference.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
2. City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached to the AGREEMENT. Consultant's compensation for all
work performed in accordance with this AMENDMENT NO. 2, including all
reimbursable items and subconsultant fees, shall not exceed E2rty Six
Thousand and no /100 Dollars f$46 040 043 without prior written authorization
from City.
3. The term of the AGREEMENT shall be extended to December 31, 2009.
4. Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 2
on the date first above written.
APPROVED AS TO FORM:
City Attorney
for the City of Newport Beach
ATTEST:
By: ga. g- � Y'iiUly..i
6a yen %-Hadde
City Clerk
CITY
A Mu
LdWard D.-Sellch, Mayor
for the City of Newport Beach
CONSULTANT:
y:
rry P
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
EXHIBIT A
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPMENT
October 1, 2008
Mr, Chris Miller
Manager, Harbor Resources Division
City of Newport Beach
3300 Newport Blvd
Newport Beach, Ca 92663
- I Dear Chris,
I propose the following scope of work for the City of Newport Beach's Harbor Resources
Division.'Ihe work will be centered on consulting services for inter - governmental
collaboration, project development, and project implementation for the following
projects.
L Maintenance dredging of the federal and non - federal channels in the Lower
Newport Bay.
2. Federal funding issues associated with the Newport Bay project
3. Development of finding and implementation strategies for the Harbor
Management plan to include items of interest to the 11arbor Commission,
4. Assistance for the development of a remediation plan for the Rhine Channel.
5. Provide strategy and assistance fir coastal and harbor related projects of priority
to the City.
6. Provide assistance for Dredged disposal issues.
7. Provide strategy for Confined Aquatic Disposal sites.
It may be expected that pre - approved travel expenses would be incurred for travel to
Sacramento and Washington D.C. for an amount of approximately $2,000. The total
contract cost will not exceed $46,000 for the period of November 1, 2008 through
December 31, 2009.
Y. . - - --
Li4
Carry Partl
949.439:1455
to rrypa u landassoc.co m
2967 Michelson Drive CP244 Irvine, CA 92612
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPMENT
October 1, 2007
Mr. Chris Miller
Manager, Harbor Resources Division
City of Newport Beach
3300 Newport Blvd
Newport Beach, Ca 92663
Dear Toni,
The following is my scheduled billing rate:
Larry Paul - $ 168.00 per hour.
Sincerely,
Larry Paul
Lam Paul
949.439.1455
IarrypaulaMda55oc.ce n
2967 Michelson Drlve 1.241 Irvine.. CA 92612
EXHIBIT B
AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH d
LARRY PAUL AND ASSOCIATES 66 oe.�-�'p� �r`
FOR r
HARBOR RESOURCES SUPPORT SERVICES`
THIS AMENDMENT NO. 1 TO PROFE�.pNAL SERVICES AGREEMENT, is
entered into as of this 30th day of Noveml er, 2007, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ("CITY"), and Larry Paul and Associates
anenv►ronmental-.serv+ces—consultant` whose address is 2967 Michelson Drive, G244
Irvine, California, 92612 ("Consultant"), and is made with reference to the following:
RECITALS:
A. On Agust 22, 2006, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT", Harbor
Resources Support Services, hereinafter referred to as "PROJECT".
B. CITY and CONSULTANT have entered into no other separate AMENDMENTS
of the AGREEMENT.
C. CITY desires to enter into this AMENDMENT NO.1 to reflect additional services
not included in the AGREEMENT and to extend the term of the AGREEMENT to
December 31, 2008. Under Item 1 of the AGREEMENT, the term of the
AGREEMENT is renewable annually for the three years based on the availability
of budgeted funds. The City has sufficient funds budgeted and desires to renew
the AGREEMENT for the second of the allowable three years.
D. CITY desires to compensate CONSULTANT for additional professional services
needed for PROJECT.
E. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1 ", as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. In addition to the services to be provided pursuant to the AGREEMENT,
CONSULTANT shall diligently perform all the services described in
AMENDMENT NO. 1 including, but not limited to, all work set forth in the Scope
of Services attached hereto as Exhibit H and incorporated herein by reference.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
2. City shall pay Consultant for the services on a time and expense not -to -exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached to the AGREEMENT. Consultant's compensation for all
work performed in accordance with this AMENDMENT NO. 1, including all
reimbursable items and subconsultant fees, shall not exceed Forty Six
T
Thousand and no/100 Dollars ($46.000-00) without prior written authorization
from City.
3. The term of the AGREEMENT shall be extended to December 31, 2008.
4. Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APPROVED AS TO FORM:
City Attorney
for the City of Newport Beach
ATTEST:n
�XG( �•3b p5wv\
By: Ie
LaVon e rkl s
City Clerk ���WP0
u - a
cqv FORN�P
CITY OF NEWPORT BEACH,
A M icipal Corporation
By: ,
ity Manager
for the City of Newport Beach
CONSULTANT:
By•;
( orate Officer)
Title:
Print Name: .,-/)/VVP'V2 9"'
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
0
•
PROFESSIONAL SERVICES AGREEMENT WITH
Larry Paul and Associates
For
Harbor Resources Support Services
THIS AGREEMENT is made and entered into as of this 22nd day of August,
2006, by and between the CITY OF NEWPORT BEACH, a Municipal
Corporation ( "City "), and Larry Paul and Associates an environmental services
consultant whose address is 2967 Michelson Drive, G244, Irvine, California,
92612 ( "Consultant'), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its
business as it is now being conducted under the statutes of the State of
California and the Charter of City.
B Larry Paul and Associates is an environmental services consulting
firm that specializes in intergovernmental relations and project
implementation.
C. City desires to retain the services of a consultant to assist in Harbor
Resources project implementation for.
1. Maintenance dredging of the federal channels in Lower
Newport Bay. Assistance in securing funding and keeping
the Corps of Engineers committed to completing the project
in accordance with a mutually agreed upon schedule is
needed.
2.Funding and implementation of the Upper Newport Bay
Ecosystem Restoration Project. Assistance in (1) working
with local state and federal elected officials to acquire project
funding; (2) developing a consensus on how to phase in the
work that can be accomplished with allotted funds; (3)
negotiating with CMANC members to ensure the project is
ranked high - priority relative to other statewide projects; (4)
keeping Corps of Engineers on track to complete a multi -
fiscal year project per the construction schedule is required.
3. Development of a Harbor Area Management Plan
implementation plan strategy. Assistance is needed to
negotiate a balanced valuation of beneficial uses among
competing resources agency interests to ensure successful
completion of the Harbor Area Management Plan.
4.Assistance in finalizing the renewal of Regional General
Permit Number 54 for the programmatic approval of small
• •
local dredging projects. Negotiations are complete with
Resource Agency staff for renewal of the permits.
Assistance is now needed to ensure permits progress
smoothly through the various boards and commissions.
5.Assistance in developing a Remediation Plan Strategy for
the Rhine Channel. The Rhine Channel has been named a
toxic hot spot by the State Water Resources Control Board
and studies have been completed to determine the extent of
contamination. Assistance with the development of
remediation strategy is needed to ensure that an
environmentally acceptable clean -up is developed that is
fundable with local state and federal assistance.
6.Assistance in promoting better coordination and cooperation
with the Orange County Sheriff's Harbor Patrol on
enforcement and operations issues. Assistance in
developing a new cooperative agreement with the Harbor
Patrol for mooring administration is needed in this task.
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 Larry Paul.
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 the 30th day of June, 2007, unless terminated earlier as
set forth herein. This agreement is renewable annually for three years based
on the availability of budgeted funds.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope
of Services attached hereto as Exhibit A and incorporated herein by
reference. The City may elect to delete certain tasks of the Scope of
Services at its sole discretion.
• •
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this
Agreement and 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 Fifty Thousand and no /100 Dollars
($50,00.00) without additional authorization from City. No billing rate
changes shall be made during the term of this Agreement without the prior
written approval of City.
4.1 Consultant shall submit 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
advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred
by Consultant:
A. The actual costs of subconsultants for performance of
any of the services that Consultant agrees to render
pursuant to this Agreement, which have been approved in
advance by City and awarded in accordance with this
Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments
specifically authorized in advance in writing and incurred by
Consultant in the performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work
performed without the prior written authorization of City. As used
herein, "Extra Work' means any work that is determined by City to
be necessary for the proper completion of the Project, but which is
not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of
this Agreement. Compensation for any authorized Extra Work shall
be paid in accordance with the Schedule of Billing Rates as set
forth in Exhibit B.
4.4 Notwithstanding any other provision of this Agreement, when
payments made by City equal 90% of the maximum fee provided
for in this Agreement, no further payments shall be made until City
has accepted the final work under this Agreement.
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 Lary Paul 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 Harbor Resources Division.
Tom Rossmiller shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator
or his /her authorized representative shall represent City in all matters
pertaining to the services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards
to new facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under
Consultant's supervision. Consultant represents that it possesses
the professional and technical personnel required to perform the
services required by this Agreement, and that it will perform all
services in a manner commensurate with community professional
standards. All services shall be performed by qualified and
experienced personnel who are not employed by City, nor have any
contractual relationship with City.
8.2 Consultant represents and warrants to City that it has or shall
obtain all licenses, permits, qualifications, insurance and approvals
of whatsoever nature that are legally required of Consultant to
• s
practice its profession. Consultant further represents and warrants
to City that Consultant shall, at its sole cost and expense, keep in
effect or obtain at all times during the term of this Agreement, any
and all licenses, permits, insurance and other approvals that are
legally required of Consultant to practice its profession. Consultant
shall maintain a City of Newport Beach business license during the
term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant
be responsible for damages or be in default or deemed to be in
default by reason of strikes, lockouts, accidents, or acts of God, or
the failure of City to furnish timely information or to approve or
disapprove Consultant's work promptly, or delay or faulty
performance by City, contractors, or governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions,
officers, agents and employees (collectively, the "Indemnified Parties')
from and against any and all claims (including, without limitation, claims
for bodily injury, death or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a Claim; collectively, "Claims "), which may arise
from or in any manner relate (directly or indirectly) to any work performed
or services provided under this Agreement (including, without limitation,
defects in workmanship or materials and /or design defects [if the design
originated with Consultant]) or Consultant's presence or activities
conducted on the Project (including the negligent and /or willful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly
or indirectly by any of them or for whose acts they may be liable or any or
all of them).
Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim
arising from the sole negligence or willful misconduct of the Indemnified
Parties. Nothing in this indemnity shall be construed as authorizing any
award of attorney's fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless
of whether any insurance policies are applicable. The policy limits do not
act as a limitation upon the amount of indemnification to be provided by
the Consultant.
da
11.
12.
13.
0 0
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.
COOPERATION
Consultant agrees to work closely and cooperate fully with City's
designated Project Administrator and any other agencies that may have
jurisdiction or interest in the work to be performed. City agrees to
cooperate with the Consultant on the Project.
CITY POLICY
Consultant shall discuss and review all matters relating to policy and
Project direction with City's Project Administrator in advance of all critical
decision points in order to ensure the Project proceeds in a manner
consistent with City goals and policies.
PROGRESS
Consultant is responsible for keeping the Project Administrator and /or
his /her duly authorized designee informed on a regular basis regarding the
status and progress of the Project, activities performed and planned, and
any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to
commencement of work. Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, a policy or policies of
liability insurance of the type and amounts described below and in a form
satisfactory to City.
•
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the
insurance coverage required herein. Insurance certificates must be
approved by City's Risk Manager prior to commencement of
performance or issuance of any permit. Current certification of
insurance shall be kept on file with City's at all times during the
term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on
its behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance
Commissioner to transact business of insurance in the State of
California, with an assigned policyholders' Rating of A (or higher)
and Financial Size Category Class VII (or larger) in accordance
with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall
maintain Workers' Compensation Insurance and Employers
Liability Insurance for his or her employees in accordance
with the laws of the State of California. In addition,
Consultant shall require each subcontractor to similarly
maintain Workers' Compensation Insurance and Employer's
Liability Insurance in accordance with the laws of the State
of California for all of the subcontractor's employees. Any
notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of
non - payment of premium) prior to such change. The insurer
shall agree to waive all rights of subrogation against City, its
officers, agents, employees and volunteers for losses arising
from work performed by Consultant for City.
ii. General Liability Coverage. Consultant shall
maintain commercial general liability insurance in an amount
not less than one million dollars ($1,000,000) per occurrence
for bodily injury, personal injury, and property damage,
including without limitation, contractual liability. If
commercial general liability insurance or other form with a
general aggregate limit is used, either the general aggregate
limit shall apply separately to the work to be performed
0
0
under this Agreement, or the general aggregate limit shall be
at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall
maintain automobile insurance covering bodily injury and
property damage for all activities of the Consultant arising
out of or in connection with work to be performed under this
Agreement, including coverage for any owned, hired, non -
owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit for each
occurrence.
iv. Professional Errors and Omissions Insurance.
Consultant shall not be required to maintain professional
errors and omissions insurance for those tasks listed in
Recital C above. If additional tasks are assigned under this
Agreement, then the City shall review those tasks relative to
the need for professional errors and omissions insurance. If
a task determined by the City to require professional errors
and omissions insurance is accepted by the Consultant, then
the Consultant shall maintain professional errors and
omissions insurance, which covers the services to be
performed in connection with this Agreement in the minimum
amount of one million dollars ($1,000,000).
E. Endorsements. Each general liability and automobile liability
insurance policy shall be endorsed with the following specific
language:
The City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as
additional insureds with respect to liability arising out of work
performed by or on behalf of the Consultant.
ii. This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims,
losses, or liability arising directly or indirectly from the
Consultant's operations or services provided to City. Any
insurance maintained by City, including any self- insured
retention City may have, shall be considered excess
insurance only and not contributory with the insurance
provided hereunder.
iii. This insurance shall act for each insured and additional
insured as though a separate policy had been written for
15.
9
E
each, except with respect to the limits of liability of the
insuring company.
iv. The insurer waives all rights of subrogation against City, its
elected or appointed officers, officials, employees, agents
and volunteers.
V. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City, its elected
or appointed officers, officials, employees, agents or
volunteers.
vi. The insurance provided by this policy shall not be
suspended, voided, canceled, or reduced in coverage or in
limits, by either party except after thirty (30) calendar days
(10 calendar days written notice of non - payment of premium)
written notice has been received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and
timely notice of claim made or suit instituted arising out of or
resulting from Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance,
which in its own judgment may be necessary for its proper
protection and prosecution of the work.
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
City and Consultant agree that subconsultants may be used to complete
the work outlined in the Scope of Services. The subconsultants
• •
authorized by City to perform work on this Project are identified in Exhibit
A. Consultant shall be fully responsible to City for all acts and omissions
of the subcontractor. Nothing in this Agreement shall create any
contractual relationship between City and 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. 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
Each and every report, draft, map, record, plan, document and other
writing produced (hereinafter "Documents "), prepared or caused to be
prepared by Consultant, its officers, employees, agents and
subcontractors, in the course of implementing this Agreement, shall
become the exclusive property of City, and City shall have the sole right to
use such materials in its discretion without further compensation to
Consultant or any other party. Consultant shall, at Consultant's expense,
provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to
be suitable for reuse by City or others on any other project. Any use of
completed Documents for other projects and any use of incomplete
Documents without specific written authorization from Consultant will be at
City's sole risk and without liability to Consultant. Further, any and all
liability arising out of changes made to Consultant's deliverables under
this Agreement by City or persons other than Consultant is waived against
Consultant and City assumes full responsibility for such changes unless
City has given Consultant prior notice and has received from Consultant
written consent for such changes.
18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the
engineer or architect in charge of or responsible for the work. City agrees
that Consultant shall not be liable for claims, liabilities or losses arising out
of, or connected with (a) the modification or misuse by City, or anyone
authorized by City, of CADD data; (b) the decline of accuracy or
readability of CADD data due to inappropriate storage conditions or
duration; or (c) any use by City, or anyone authorized by City, of CADD
data for additions to this Project, for the completion of this Project by
others, or for any other Project, excepting only such use as is authorized,
in writing, by Consultant. By acceptance of CADD data, City agrees to
indemnify Consultant for damages and liability resulting from the
•
modification or misuse of such CADD data. All original drawings shall be
submitted to City in the version of AutoCAD used by CITY in °.dwg" file
format on a CD, and should comply with the City's digital submission
requirements for Improvement Plans. The City will provide AutoCAD file
of City Title Sheets. All written documents shall be transmitted to City in
the City's latest adopted version of Microsoft Word and Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be
kept confidential unless City authorizes in writing the release of
information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents
his /her judgment as a design professional and is supplied for the general
guidance of City. Since Consultant has no control over the cost of labor
and material, or over competitive bidding or market conditions, Consultant
does not guarantee the accuracy of such opinions as compared to
contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including
costs, for infringement of any United States' letters patent, trademark, or
copyright infringement, including costs, contained in Consultant's drawings
and specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to
be performed under this Agreement. Consultant shall maintain complete
and accurate records with respect to the costs incurred under this
Agreement and any services, expenditures and disbursements charged to
City, for a minimum period of three (3) years, or for any longer period
required by law, from the date of final payment to Consultant under this
Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business
hours. Consultant shall allow inspection of all work, data, Documents,
proceedings and activities related to the Agreement for a period of three
(3) years from the date of final payment to Consultant under this
Agreement.
0 0
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until
satisfaction of the dispute with respect to such payment. Such withholding
shall not be deemed to constitute a failure to pay according to the terms of
this Agreement. Consultant shall not discontinue work as a result of such
withholding. Consultant shall have an immediate right to appeal to the
City Manager or his /her designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the
rate of return that City earned on its investments during the time period,
from the date of withholding of any amounts found to have been
improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or
professional inexperience of Consultant which result in expense to City
greater than what would have resulted if there were not errors or
omissions in the work accomplished by Consultant, the additional design,
construction and/or restoration expense shall be bome by Consultant.
Nothing in this paragraph is intended to limit City's rights under any other
sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be
materially affected by the work performed under this Agreement, and (2)
prohibits such persons from making, or participating in making, decisions
that will foreseeably financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for
immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages
resulting from Consultant's violation of this Section.
27. NOTICES
• •
All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, to City by Consultant and
conclusively shall be deemed served when delivered personally, or on the
third business day after the deposit thereof in the United States mail,
postage prepaid, first -class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Consultant to City shall be
addressed to City at:
Attention: Tom Rossmiller
Harbor Resources Division
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 -644 -3041
Fax: 949 - 723 -0589
trossmiller(r ciity.newport- beach.ca.us
All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Larry Paul
Larry Paul and Associates
2967 Michelson Drive, G244
Irvine, CA 92612
Phone: (949) 439 -1455
lawrence.paul(a)sbcglobal.net
28. TERMINATION
In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that
party shall be deemed in default in the performance of this Agreement. If
such default is not cured within a period of two (2) calendar days, or if
more than two (2) calendar days are reasonably required to cure the
default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of
default, specifying the nature of such default and the steps necessary to
cure such default, the non - defaulting party may terminate the Agreement
forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by
giving seven (7) calendar days prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for
services satisfactorily performed and costs incurred up to the effective
date of termination for which Consultant has not been previously paid. On
• •
the effective date of termination, Consultant shall deliver to City all reports,
Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or
hereinafter enacted. In addition, all work prepared by Consultant shall
conform to applicable City, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the
Project Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained
herein, whether of the same or a different character.
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary
negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the
provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this
Agreement and the Scope of Services or any other attachments attached
hereto, the terms of this Agreement shall govern.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the
•
E
remaining provisions of this Agreement shall continue in full force and
effect.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all
matters relating to it and any action brought relating to this Agreement
shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall
not discriminate against any subcontractor, employee or applicant for
employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first written above.
APPROVED AS TO FORM:
:
B AGin- C <
By:_
City Attorney
for the City of Newport Beach Fay.
City Clerk — Lavonne Harkless
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: /_-
Homer Bludau,
City Manager
for the City of Newport Beach
CONSULTANT:
Larryaul
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
0 • C-mz
PROFESSIONAL SERVICES AGREEMENT WITH
Larry Paul and Associates
For
Harbor Resources Support Services
THIS AGREEMENT is made and entered into as of this ap day of
Y 2006, by and between the CITY OF NEWPORT BEACH, a
Municipal Corporation ( "City "), and Larry Paul and Associates an environmental
services consultant whose address is 2967 Michelson Drive, G244
Irvine, California, 92612 ( "Consultant "), and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its
business as it is now being conducted under the statutes of the State of
California and the Charter of City.
B Larry Paul and Associates is an environmental services consulting
firm that specializes in intergovernmental relations and project
implementation.
C. City desires to retain the services of a consultant to assist in Harbor
Resources project implementation for:
1. Maintenance dredging of the federal channels in Lower
Newport Bay. Assistance in securing funding and keeping
the Corps of Engineers committed to completing the project
in accordance with a mutually agreed upon schedule is
needed.
2.Funding and implementation of the Upper Newport Bay
Ecosystem Restoration Project. Assistance in (1) working
with local state and federal elected officials to acquire project
funding; (2) developing a consensus on how to phase in the
work that can be accomplished with allotted funds; (3)
negotiating with CMANC members to ensure the project is
ranked high - priority relative to other statewide projects; (4)
keeping Corps of Engineers on track to complete a multi -
fiscal year project per the construction schedule is required.
3.Development of a Harbor Area Management Plan
implementation plan strategy. Assistance is needed to
negotiate a balanced valuation of beneficial uses among
competing resources agency interests to ensure successful
completion of the Harbor Area Management Plan.
• •
4.Assistance in finalizing the renewal of Regional General
Permit Number 54 for the programmatic approval of small
local dredging projects. Negotiations are complete with
Resource Agency staff for renewal of the permits.
Assistance is now needed to ensure permits progress
smoothly through the various boards and commissions.
5.Assistance in developing a Remediation Plan Strategy for
the Rhine Channel. The Rhine Channel has been named a
toxic hot spot by the State Water Resources Control Board
and studies have been completed to determine the extent of
contamination. Assistance with the development of
remediation strategy is needed to ensure that an
environmentally acceptable clean -up is developed that is
fundable with local state and federal assistance.
6.Assistance in promoting better coordination and cooperation
with the Orange County Sheriffs Harbor Patrol on
enforcement and operations issues. Assistance in
developing a new cooperative agreement with the Harbor
Patrol for mooring administration is needed in this task.
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 Larry Paul.
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 the 30th day of June, 2006, unless terminated earlier as
set forth herein. This agreement is renewable annually for three years based
on the availability of budgeted funds.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope
of Services attached hereto as Exhibit A and incorporated herein by
• •
reference. The City may elect to delete certain tasks of the Scope of
Services at its sole discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this
Agreement and 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 Thirty Thousand, Four Hundred
and no /100 Dollars ($30,400.00) without additional authorization from
City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.1 Consultant shall submit 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
advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred
by Consultant:
A. The actual costs of subconsultants for performance of
any of the services that Consultant agrees to render
pursuant to this Agreement, which have been approved in
advance by City and awarded in accordance with this
Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments
specifically authorized in advance in writing and incurred by
Consultant in the performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work
performed without the prior written authorization of City. As used
herein, "Extra Work" means any work that is determined by City to
be necessary for the proper completion of the Project, but which is
not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of
this Agreement. Compensation for any authorized Extra Work shall
be paid in accordance with the Schedule of Billing Rates as set
forth in Exhibit B.
4.4 Notwithstanding any other provision of this Agreement, when
payments made by City equal 90% of the maximum fee provided
for in this Agreement, no further payments shall be made until City
has accepted the final work under this Agreement.
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 Larry Paul 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 Harbor Resources Division.
Tom Rossmiller shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator
or his /her authorized representative shall represent City in all matters
pertaining to the services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards
to new facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under
Consultant's supervision. Consultant represents that it possesses
the professional and technical personnel required to perform the
services required by this Agreement, and that it will perform all
services in a manner commensurate with community professional
standards. All services shall be performed by qualified and
experienced personnel who are not employed by City, nor have any
contractual relationship with City.
0 0
8.2 Consultant represents and warrants to City that it has or shall
obtain all licenses, permits, qualifications, insurance and approvals
of whatsoever nature that are legally required of Consultant to
practice its profession. Consultant further represents and warrants
to City that Consultant shall, at its sole cost and expense, keep in
effect or obtain at all times during the term of this Agreement, any
and all licenses, permits, insurance and other approvals that are
legally required of Consultant to practice its profession. Consultant
shall maintain a City of Newport Beach business license during the
term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant
be responsible for damages or be in default or deemed to be in
default by reason of strikes, lockouts, accidents, or acts of God, or
the failure of City to furnish timely information or to approve or
disapprove Consultant's work promptly, or delay or faulty
performance by City, contractors, or governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions,
officers, agents and employees (collectively, the "Indemnified Parties ")
from and against any and all claims (including, without limitation, claims
for bodily injury, death or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a Claim; collectively, "Claims "), which may arise
from or in any manner relate (directly or indirectly) to any work performed
or services provided under this Agreement (including, without limitation,
defects in workmanship or materials and /or design defects [if the design
originated with Consultant]) or Consultant's presence or activities
conducted on the Project (including the negligent and/or willful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly
or indirectly by any of them or for whose acts they may be liable or any or
all of them).
Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim
arising from the sole negligence or willful misconduct of the Indemnified
Parties. Nothing in this indemnity shall be construed as authorizing any
award of attorney's fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless
• •
of whether any insurance policies are applicable. The policy limits do not
act as a limitation upon the amount of indemnification to be provided by
the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor
basis and Consultant is not an agent or employee of City. The manner
and means of conducting the work are under the control of Consultant,
except to the extent they are limited by statute, rule or regulation and the
expressed terms of this Agreement. Nothing in this Agreement shall be
deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing
the work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the
right to direct Consultant as to the details of the performance or to
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 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, a policy or policies of
liability insurance of the type and amounts described below and in a form
satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the
insurance coverage required herein. Insurance certificates must be
approved by City's Risk Manager prior to commencement of
performance or issuance of any permit. Current certification of
insurance shall be kept on file with City's at all times during the
term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on
its behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance
Commissioner to transact business of insurance in the State of
California, with an assigned policyholders' Rating of A (or higher)
and Financial Size Category Class VII (or larger) in accordance
with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall
maintain Workers' Compensation Insurance and Employers
Liability Insurance for his or her employees in accordance
with the laws of the State of California. In addition,
Consultant shall require each subcontractor to similarly
maintain Workers' Compensation Insurance and Employer's
Liability Insurance in accordance with the laws of the State
of California for all of the subcontractors employees. Any
notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of
non - payment of premium) prior to such change. The insurer
shall agree to waive all rights of subrogation against City, its
officers, agents, employees and volunteers for losses arising
from work performed by Consultant for City.
ii. General Liability Coverage. Consultant shall
maintain commercial general liability insurance in an amount
not less than one million dollars ($1,000,000) per occurrence
• •
for bodily injury, personal injury, and property damage,
including without limitation, contractual liability. If
commercial general liability insurance or other form with a
general aggregate limit is used, either the general aggregate
limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be
at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall
maintain automobile insurance covering bodily injury and
property damage for all activities of the Consultant arising
out of or in connection with work to be performed under this
Agreement, including coverage for any owned, hired, non -
owned or rented vehicles, in an amount not less than one
million dollars ($1,000;000) combined single limit for each
occurrence.
iv. Professional Errors and Omissions Insurance.
Consultant shall not be required to maintain professional
errors and omissions insurance for those tasks listed in
Recital C above. If additional tasks are assigned under this
Agreement, then the City shall review those tasks relative to
the need for professional errors and omissions insurance. If
a task determined by the City to require professional errors
and omissions insurance is accepted by the Consultant, then
the Consultant shall maintain professional errors and
omissions insurance, which covers the services to be
performed in connection with this Agreement in the minimum
amount of one million dollars ($1,000,000).
E. Endorsements. Each general liability and automobile liability
insurance policy shall be endorsed with the following specific
language:
i. The City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as
additional insureds with respect to liability arising out of work
performed by or on behalf of the Consultant.
ii. This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims,
losses, or liability arising directly or indirectly from the
Consultant's operations or services provided to City. Any
insurance maintained by City, including any self- insured
retention City may have, shall be considered excess
• •
insurance only and not contributory with the insurance
provided hereunder.
iii. This insurance shall act for each insured and additional
insured as though a separate policy had been written for
each, except with respect to the limits of liability of the
insuring company.
iv. The insurer waives all rights of subrogation against City, its
elected or appointed officers, officials, employees, agents
and volunteers.
V. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City, its elected
or appointed officers, officials, employees, agents or
volunteers.
vi. The insurance provided by this policy shall not be
suspended, voided, canceled, or reduced in coverage or in
limits, by either party except after thirty (30) calendar days
(10 calendar days written notice of non - payment of premium)
written notice has been received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and
timely notice of claim made or suit instituted arising out of or
resulting from Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance,
which in its own judgment may be necessary for its proper
protection and prosecution of the work.
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
City and Consultant agree that subconsultants may be used to complete
the work outlined in the Scope of Services. The subconsultants
authorized by City to perform work on this Project are identified in Exhibit
A. Consultant shall be fully responsible to City for all acts and omissions
of the subcontractor. Nothing in this Agreement shall create any
contractual relationship between City and 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. 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
Each and every report, draft, map, record, plan, document and other
writing produced (hereinafter "Documents'), prepared or caused to be
prepared by Consultant, its officers, employees, agents and
subcontractors, in the course of implementing this Agreement, shall
become the exclusive property of City, and City shall have the sole right to
use such materials in its discretion without further compensation to
Consultant or any other party. Consultant shall, at Consultant's expense,
provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to
be suitable for reuse by City or others on any other project. Any use of
completed Documents for other projects and any use of incomplete
Documents without specific written authorization from Consultant will be at
City's sole risk and without liability to Consultant. Further, any and all
liability arising out of changes made to Consultant's deliverables under
this Agreement by City or persons other than Consultant is waived against
Consultant and City assumes full responsibility for such changes unless
City has given Consultant prior notice and has received from Consultant
written consent for such changes.
18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the
engineer or architect in charge of or responsible for the work. City agrees
that Consultant shall not be liable for claims, liabilities or losses arising out
of, or connected with (a) the modification or misuse by City, or anyone
authorized by City, of CADD data; (b) the decline of accuracy or
readability of CADD data due to inappropriate storage conditions or
•
duration; or (c) any use by City, or anyone authorized by City, of CADD
data for additions to this Project, for the completion of this Project by
others, or for any other Project, excepting only such use as is authorized,
in writing, by Consultant. By acceptance of CADD data, City agrees to
indemnify Consultant for damages and liability resulting from the
modification or misuse of such CADD data. All original drawings shall be
submitted to City in the version of AutoCAD used by CITY in ".dwg" file
format on a CD, and should comply with the City's digital submission
requirements for Improvement Plans. The City will provide AutoCAD file
of City Title Sheets. All written documents shall be transmitted to City in
the City's latest adopted version of Microsoft Word and Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be
kept confidential unless City authorizes in writing the release of
information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents
his/her judgment as a design professional and is supplied for the general
guidance of City. Since Consultant has no control over the cost of labor
and material, or over competitive bidding or market conditions, Consultant
does not guarantee the accuracy of such opinions as compared to
contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including
costs, for infringement of any United States' letters patent, trademark, or
copyright infringement, including costs, contained in Consultant's drawings
and specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to
be performed under this Agreement. Consultant shall maintain complete
and accurate records with respect to the costs incurred under this
Agreement and any services, expenditures and disbursements charged to
City, for a minimum period of three (3) years, or for any longer period
required by law, from the date of final payment to Consultant under this
Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make
0 0
transcripts or copies of such records and invoices during regular business
hours. Consultant shall allow inspection of all work, data, Documents,
proceedings and activities related to the Agreement for a period of three
(3) years from the date of final payment to Consultant under this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until
satisfaction of the dispute with respect to such payment. Such withholding
shall not be deemed to constitute a failure to pay according to the terms of
this Agreement. Consultant shall not discontinue work as a result of such
withholding. Consultant shall have an immediate right to appeal to the
City Manager or his /her designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the
rate of return that City earned on its investments during the time period,
from the date of withholding of any amounts found to have been
improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or
professional inexperience of Consultant which result in expense to City
greater than what would have resulted if there were not errors or
omissions in the work accomplished by Consultant, the additional design,
construction and /or restoration expense shall be borne by Consultant.
Nothing in this paragraph is intended to limit City's rights under any other
sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be
materially affected by the work performed under this Agreement, and (2)
prohibits such persons from making, or participating in making, decisions
that will foreseeably financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for
immediate termination of this Agreement by City. Consultant shall
0
indemnify and hold harmless City for any and all claims for damages
resulting from Consultant's violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, to City by Consultant and
conclusively shall be deemed served when delivered personally, or on the
third business day after the deposit thereof in the United States mail,
postage prepaid, first -class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Consultant to City shall be
addressed to City at:
Attention: Tom Rossmiller
Harbor Resources Division
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3041
Fax: 949 - 723 -0589
trossmiller(cDcity. newport- beach. ca. us
All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Larry Paul
Larry Paul and Associates
2967 Michelson Drive, G244
Irvine, CA 92612
Phone: (949) 439 -1455
lawrence.paulasbcglobal.net
28. TERMINATION
In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that
party shall be deemed in default in the performance of this Agreement. It
such default is not cured within a period of two (2) calendar days, or if
more than two (2) calendar days are reasonably required to cure the
default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of
default, specifying the nature of such default and the steps necessary to
cure such default, the non - defaulting party may terminate the Agreement
forthwith by giving to the defaulting party written notice thereof.
• •
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by
giving seven (7) calendar days prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for
services satisfactorily performed and costs incurred up to the effective
date of termination for which Consultant has not been previously paid. On
the effective date of termination, Consultant shall deliver to City all reports,
Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or
hereinafter enacted. In addition, all work prepared by Consultant shall
conform to applicable City, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the
Project Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained
herein, whether of the same or a different character.
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary
negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the
provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this
Agreement and the Scope of Services or any other attachments attached
hereto, the terms of this Agreement shall govern.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall continue in full force and
effect.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all
matters relating to it and any action brought relating to this Agreement
shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall
not discriminate against any subcontractor, employee or applicant for
employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first written above.
APPROVED AS TO FORM:
By:
_ (60'x�
City Attorney
for the City of Newport Beach
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Dave Kiff,
Assistant City Manager
for the City of Newport Beach
CONSULTANT:
arty P��rl
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPMENT
March 17, 2006
Mr. Tom Rossmiller
Manager, Harbor Resources Division
City of Newport Beach
3300 Newport Blvd.
Newport Beach Ca 92663
Dear Tom,
I propose the following scope of work for the City of Newport Beach's Harbor Resources
Division. The work will be centered on consulting services for inter -governmental
relations, project development, and project implementation for the following projects:
1. Maintenance dredging of the federal channels in Lower Newport Bay.
Provide assistance in securing funding and keeping the Corps of Engineers
committed to completing the project in accordance with a mutually agreed upon
scheduled is needed.
2. Funding and implementation of the Upper Newport Bay Ecosystem
Restoration Project. Assistance in (1) working with local, state and federal
elected officials to acquire project funding; (2) developing a consensus on how to
phase in the work that can be accomplished with available funds; (3) negotiating
with CMANC members to ensure that project is ranked a high priority relative to
other Statewide projects; (4) keeping the Corps of Engineers on the construction
schedule to complete this multi-year project.
3. Development of a Harbor Area Management Plan implementation Strategy.
Assistance in negotiating a balanced valuation of beneficial uses among
competing interests to ensure the successfal completion of the Plan.
4. Assistance in finalizing the renewal of the Regional General Permit. Work is
needed to ensure that the permits progress through the approval process of the
various Boards and Commissions.
5. Assistance in developing a Remediation Plan Strategy for the Rhine Channel.
The Rhine Channel has been named a toxic spot by the State Water Resources
Control board and studies have been completed to determine the extent of
contamination. Assistance with the development of remediation strategy is
needed to ensure that an environmentally acceptable clean-up is developed that is
fundable with local state and federal assistance.
Larry Paul
949.439.1455
larrypaulanclassoc.com
2967 Michelson Drive G244 Irvine, CA 92612
Larry Paul & Associates
City of Newport Beach Proposal
March 17, 2006
Page 2
6. Assistance in promoting better coordination and cooperation with the
Orange County Sheriffs Harbor Patrol on enforcement and operations
issues. Assistance in developing a new cooperative agreement with the
Harbor Patrol for mooring administration is needed in this task.
Thank you for the opportunity to submit this proposal. I look forward to working with
you in the very near future.
Very truly yours,
c"
Larry Pa
Larry Paul & Associates
949-439-1455
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPMENT
March 17, 2006
Mr. Tom Rossmiller
Manager, Harbor resources Division
City of Newport Beach
3300 Newport Blvd.
Newport Beach, Ca 92663
Dear Tom:
The Following is my Scheduled Billing Rate:
Larry Paul - $160.00 per hour
Administrative Costs @ $21.50 per hour.
Sincerely,
Larry Paul
Larry Paul
949.439.14 5 5
larrypaLila nda55oc.com
2967 Michelson Drive 6244 Irvine, CA 92612
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPMENT
March 17, 2006
Mr. Tom Rossmiller
Manager, Harbor Resources Division
City of Newport Beach
3300 Newport Blvd.
Newport Beach Ca 92663
Dear Tom,
I propose the following scope of work for the City of Newport Beach's Harbor Resources
Division. The work will be centered on consulting services for inter -governmental
relations, project development, and project implementation for the following projects:
1. Maintenance dredging of the federal channels in Lower Newport Bay.
Provide assistance in securing funding and keeping the Corps of Engineers
committed to completing the project in accordance with a mutually agreed upon
scheduled is needed.
2. Funding and implementation of the Upper Newport Bay Ecosystem
Restoration Project. Assistance in (1) working with local, state and federal
elected officials to acquire project funding; (2) developing a consensus on how to
phase in the work that can be accomplished with available funds; (3) negotiating
with CMANC members to ensure that project is ranked a high priority relative to
other Statewide projects; (4) keeping the Corps of Engineers on the construction
schedule to complete this multi-year project.
3. Development of a Harbor Area Management Plan implementation Strategy.
Assistance in negotiating a balanced valuation of beneficial uses among
competing interests to ensure the successful completion of the Plan.
4. Assistance in finalizing the renewal of the Regional General Permit. Work is
needed to ensure that the permits progress through the approval process of the
various Boards and Commissions.
5. Assistance in developing a Remediation Plan Strategy for the Rhine Channel.
The Rhine Channel has been named a toxic spot by the State Water Resources
Control board and studies have been completed to determine the extent of
contamination. Assistance with the development of remediation strategy is
needed to ensure that an environmentally acceptable clean-up is developed that is
fundable with local state and federal assistance.
Larry Paul
949.439.1455
1arrypauIan dassoc.com
2967 Michelson Drive G244 Irvine, CA 92612
Larry Paul & Associates
City of Newport Beach Proposal
March 17, 2006
Page 2
6. Assistance in promoting better coordination and cooperation with the
Orange County Sheriffs Harbor Patrol on enforcement and operations
issues. Assistance in developing a new cooperative agreement with the
Harbor Patrol for mooring administration is needed in this task.
Thank you for the opportunity to submit this proposal. I look forward to working with
you in the very near future.
Very truly yours,
arry P _ 1"
Larry Paul & Associates
949-439-1455
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPMENT
March 17, 2006
Mr. Tom Rossmiller
Manager, Harbor resources Division
City of Newport Beach
3300 Newport Blvd.
Newport Beach, Ca 92663
Dear Tom:
The Following is my Scheduled Billing Rate:
Larry Paul - $160.00 per hour
Administrative Costs @ $21.50 per hour.
Sincerely,
G
arry Pa�
Larry Paul
949.439.1455
larrypauIandassoc.com
2967 Michelson Drive 6244 Irvine, CA 92612
• • ovioo -0,-0Jb)
C - 2� ?3C?-
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 12
March 28, 2006
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Harbor Resources Division / City Manager's Office
Tom Rossmiller, Manager Harbor Resources, 949 - 644 -3041
trossmiller cDcity.newport- beach.ca.us
Dave Kiff, Assistant City Manager, 949 - 644 -3002
dkiff ccDcity.newport- beach.ca.us
BY
cm
SUBJECT: Approval of the Professional Services Agreement for Harbor
Resources Program and Project Support with Larry Paul and
Associates for $30,400.
ISSUE:
Should the City authorize a professional services agreement with Mr. Larry Paul of Larry
Paul and Associates for Harbor Resources Program and Project Support for $30,400?
RECOMMENDATION:
Approve a Professional Services Agreement with Larry Paul and Associates for
$30,400.00 for the Professional Services Agreement term of March 28 to June 30,
2006.
DISCUSSION:
Background:
On May 28, 2003 the City of Newport Beach entered into a six -month sole- source
professional services agreement with Larry Paul (formerly with Tetra Tech Inc.) in order
to provide program and project support to the Harbor Resources Division. The not -to-
exceed contract price was $66,557.00.
During that time period, Mr. Paul has been instrumental in assisting Harbor Resources
to:
)006
• Carry Paul and Associates
Professional Services Agreement
March 28, 2006
Page 2
• Obtain federal funding and implementation of Phase One dredging in Lower
Newport Bay;
• Serve as liaison to the US Army Corps of Engineers regarding the Upper
Newport Bay Ecosystem Restoration Project;
• Develop an Eelgrass Management Strategy to present to the Resources
Agencies and Congress for support and funding;
• Prepare briefings and talking points for Council Members' trips to Washington,
D.C. to discuss harbor- and Bay - related issues; and
• Promote better coordination and cooperation with the Orange County Sheriffs
Harbor Patrol on harbor enforcement and operations issues.
Mr. Paul has subsequently resigned from Tetra Tech and started the firm, Larry Paul
and Associates.
Lookina Ahead
It would be beneficial to continue Larry Paul's services through June 30, 2006 to
continue the progress that has been made to bring resolution to the problematic
maintenance dredging issues in the federal channels of the Lower Bay. In addition, with
the assistance of Larry Paul we will have an enhanced opportunity to get all of the
Resources Agencies to participate in the preparation of a Harbor Area Management
Plan ( "HAMP ") that will, among other things, set a baseline for the amount of eelgrass
necessary to maintain essential fish habitat. Both of these issues are critical to
sustaining safe navigation in the harbor.
Terms of the Agreement Amendment
The proposed Professional Services Agreement provides for "as needed" staff
assistance at an estimated rate of 48 hours per month. The term of the former
agreement expired on December 31, 2005. The proposed Professional Services
Agreement would:
• Provide a term that extends from present until June 30, 2006, subject to
cancellation by the City without cause with 30 days' written notice of cancellation
from City to Larry Paul and Associates.
• Provide for funding in the amount of $30,400.00.
Environmental Review: The City Council's discussion of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act
(72 hours in advance of the public meeting at which the City Council considers the
item).
0
grry Paul and Associates
Professional Services Agreement
March 28, 2006
Page 3
Funding Availability: The period of March 28 through June 30, 2006 is included within
the approved FY 2005 -06 Budget.
Alternatives: Perform the necessary duties with existing in -house staff.
Prepared by:
Submitted by:
wj�
Tom Rossmiller, Harbor Resources Manager Dave <iff, Assistant City anager
Attachments: Professional Services Agreement
FJ
0
PROFESSIONAL SERVICES AGREEMENT WITH
Larry Paul and Associates
For
Harbor Resources Support Services
THIS AGREEMENT is made and entered into as of this _ day of
, 2006, by and between the CITY OF NEWPORT BEACH, a
Municipal Corporation ( "City "), and Larry Paul and Associates an environmental
services consultant whose address is 2967 Michelson Drive, G244
Irvine, California, 92612 ( "Consultant'), and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its
business as it is now being conducted under the statutes of the State of
California and the Charter of City.
B Larry Paul and Associates is an environmental services consulting
firm that specializes in intergovernmental relations and project
implementation.
C. City desires to retain the services of a consultant to assist in Harbor
Resources project implementation for:
1. Maintenance dredging of the federal channels in Lower
Newport Bay. Assistance in securing funding and keeping
the Corps of Engineers committed to completing the project
in accordance with a mutually agreed upon schedule is
needed.
2.Funding and implementation of the Upper Newport Bay
Ecosystem Restoration Project. Assistance in (1) working
with local state and federal elected officials to acquire project
funding; (2) developing a consensus on how to phase in the
work that can be accomplished with allotted funds; (3)
negotiating with CMANC members to ensure the project is
ranked high - priority relative to other statewide projects; (4)
keeping Corps of Engineers on track to complete a multi -
fiscal year project per the construction schedule is required.
3. Development of a Harbor Area Management Plan
implementation plan strategy. Assistance is needed to
negotiate a balanced valuation of beneficial uses among
competing resources agency interests to ensure successful
completion of the Harbor Area Management Plan.
,{
• •
4.Assistance in finalizing the renewal of Regional General
Permit Number 54 for the programmatic approval of small
local dredging projects. Negotiations are complete with
Resource Agency staff for renewal of the permits.
Assistance is now needed to ensure permits progress
smoothly through the various boards and commissions.
5.Assistance in developing a Remediation Plan Strategy for
the Rhine Channel. The Rhine Channel has been named a
toxic hot spot by the State Water Resources Control Board
and studies have been completed to determine the extent of
contamination. Assistance with the development of
remediation strategy is needed to ensure that an
environmentally acceptable clean -up is developed that is
fundable with local state and federal assistance.
6.Assistance in promoting better coordination and cooperation
with the Orange County Sheriff's Harbor Patrol on
enforcement and operations issues. Assistance in
developing a new cooperative agreement with the Harbor
Patrol for mooring administration is needed in this task.
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 Larry Paul.
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 the 30th day of June, 2006, unless terminated earlier as
set forth herein. This agreement is renewable annually for three years based
on the availability of budgeted funds.
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
F
J
• •
reference. The City may elect to delete certain tasks of the Scope of
Services at its sole discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this
Agreement and the services shall be performed to completion in a diligent
and timely manner. The failure by Consultant to perform the services in a
diligent and timely manner may result in termination of this Agreement by
City.
Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However,
in the case of any such delay in the services to be provided for the Project,
each party hereby agrees to provide notice to the other party so that all
delays can be addressed.
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 Thirty Thousand, Four Hundred
and no1100 Dollars ($30,400.00) without additional authorization from
City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.1 Consultant shall submit 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
a
• •
performed, the number of hours spent on all work billed on an
hourly basis, and a description of any reimbursable expenditures.
City shall pay Consultant no later than thirty (30) days after
approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in
advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred
by Consultant:
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.
4.4 Notwithstanding any other provision of this Agreement, when
payments made by City equal 90% of the maximum fee provided
for in this Agreement, no further payments shall be made until City
has accepted the final work under this Agreement.
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 Larry Paul 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 Harbor Resources Division.
Tom Rossmiller shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator
or his /her authorized representative shall represent City in all matters
pertaining to the services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards
to new facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under
Consultant's supervision. Consultant represents that it possesses
the professional and technical personnel required to perform the
services required by this Agreement, and that it will perform all
services in a manner commensurate with community professional
standards. All services shall be performed by qualified and
experienced personnel who are not employed by City, nor have any
contractual relationship with City.
i
0 0
8.2 Consultant represents and warrants to City that it has or shall
obtain all licenses, permits, qualifications, insurance and approvals
of whatsoever nature that are legally required of Consultant to
practice its profession. Consultant further represents and warrants
to City that Consultant shall, at its sole cost and expense, keep in
effect or obtain at all times during the term of this Agreement, any
and all licenses, permits, insurance and other approvals that are
legally required of Consultant to practice its profession. Consultant
shall maintain a City of Newport Beach business license during the
term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant
be responsible for damages or be in default or deemed to be in
default by reason of strikes, lockouts, accidents, or acts of God, or
the failure of City to furnish timely information or to approve or
disapprove Consultant's work promptly, or delay or faulty
performance by City, contractors, or governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions,
officers, agents and employees (collectively, the "Indemnified Parties ")
from and against any and all claims (including, without limitation, claims
for bodily injury, death or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a Claim; collectively, "Claims "), which may arise
from or in any manner relate (directly or indirectly) to any work performed
or services provided under this Agreement (including, without limitation,
defects in workmanship or materials and /or design defects (if the design
originated with Consultant]) or Consultant's presence or activities
conducted on the Project (including the negligent and /or willful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly
or indirectly by any of them or for whose acts they may be liable or any or
all of them).
Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim
arising from the sole negligence or willful misconduct of the Indemnified
Parties. Nothing in this indemnity shall be construed as authorizing any
award of attorney's fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless
10.
11
12.
Ii"
14.
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.
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.
COOPERATION
Consultant agrees to work closely and cooperate fully with City's
designated Project Administrator and any other agencies that may have
jurisdiction or interest in the work to be performed. City agrees to
cooperate with the Consultant on the Project.
CITY POLICY
Consultant shall discuss and review all matters relating to policy and
Project direction with City's Project Administrator in advance of all critical
decision points in order to ensure the Project proceeds in a manner
consistent with City goals and policies.
PROGRESS
Consultant is responsible for keeping the Project Administrator and /or
his/her duly authorized designee informed on a regular basis regarding the
status and progress of the Project, activities performed and planned, and
any meetings that have been scheduled or are desired.
INSURANCE
i
•
E
Without limiting Consultant's indemnification of City, and rip or to
commencement of work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, a policy or policies of
liability insurance of the type and amounts described below and in a form
satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the
insurance coverage required herein. Insurance certificates must be
approved by City's Risk Manager prior to commencement of
- performance or issuance of any permit. Current certification of
insurance shall be kept on file with City's at all times during the
term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on
its behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance
Commissioner to transact business of insurance in the State of
California, with an assigned policyholders' Rating of A (or higher)
and Financial Size Category Class VII (or larger) in accordance
with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall
maintain Workers' Compensation Insurance and Employer's
Liability Insurance for his or her employees in accordance
with the laws of the State of California. In addition,
Consultant shall require each subcontractor to similarly
maintain Workers' Compensation Insurance and Employer's
Liability Insurance in accordance with the laws of the State
of California for all of the subcontractor's employees. Any
notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of
non - payment of premium) prior to such change. The insurer
shall agree to waive all rights of subrogation against City, its
officers, agents, employees and volunteers for losses arising
from work performed by Consultant for City.
ii. General Liability Coverage. Consultant shall
maintain commercial general liability insurance in an amount
not less than one million dollars ($1,000,000) per occurrence
• •
for bodily injury, personal injury, and property damage,
including without limitation, contractual liability. If
commercial general liability insurance or other form with a
general aggregate limit is used, either the general aggregate
limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be
at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall
maintain automobile insurance covering bodily injury and
property damage for all activities of the Consultant arising
out of or in connection with work to be performed under this
Agreement, including coverage for any owned, hired, non -
owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit for each
occurrence.
iv. Professional Errors and Omissions Insurance.
Consultant shall not be required to maintain professional
errors and omissions insurance for those tasks listed in
Recital C above. If additional tasks are assigned under this
Agreement, then the City shall review those tasks relative to
the need for professional errors and omissions insurance. If
a task determined by the City to require professional errors
and omissions insurance is accepted by the Consultant, then
the Consultant shall maintain professional errors and
omissions insurance, which covers the services to be
performed in connection with this Agreement in the minimum
amount of one million dollars ($1,000,000).
E. Endorsements. Each general liability and automobile liability
insurance policy shall be endorsed with the following specific
language:
The City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as
additional insureds with respect to liability arising out of work
performed by or on behalf of the Consultant.
ii. This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims,
losses, or liability arising directly or indirectly from the
Consultant's operations or services provided to City. Any
insurance maintained by City, including any self- insured
retention City may have, shall be considered excess
n
i o.
0
insurance only and not contributory with the insurance
provided hereunder.
iii. This insurance shall act for each insured and additional
insured as though a separate policy had been written for
each, except with respect to the limits of liability of the
insuring company.
iv. The insurer waives all rights of subrogation against City, its
elected or appointed officers, officials, employees, agents
and volunteers.
V. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City, its elected
or appointed officers, officials, employees, agents or
volunteers.
vi. The insurance provided by this policy shall not be
suspended, voided, canceled, or reduced in coverage or in
limits, by either party except after thirty (30) calendar days
(10 calendar days written notice of non - payment of premium)
written notice has been received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and
timely notice of claim made or suit instituted arising out of or
resulting from Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance,
which in its own judgment may be necessary for its proper
protection and prosecution of the work.
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.
jJ
16. SUBCONTRACTING
City and Consultant agree that subconsultants may be used to complete
the work outlined in the Scope of Services. The subconsultants
authorized by City to perform work on this Project are identified in Exhibit
A. Consultant shall be fully responsible to City for all acts and omissions
of the subcontractor. Nothing in this Agreement shall create any
contractual relationship between City and 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. 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
Each and every report, draft, map, record, plan, document and other
writing produced (hereinafter "Documents "), prepared or caused to be
prepared by Consultant, its officers, employees, agents and
subcontractors, in the course of implementing this Agreement, shall
become the exclusive property of City, and City shall have the sole right to
use such materials in its discretion without further compensation to
Consultant or any other party. Consultant shall, at Consultant's expense,
provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to
be suitable for reuse by City or others on any other project. Any use of
completed Documents for other projects and any use of incomplete
Documents without specific written authorization from Consultant will be at
City's sole risk and without liability to Consultant. Further, any and all
liability arising out of changes made to Consultant's deliverables under
this Agreement by City or persons other than Consultant is waived against
Consultant and City assumes full responsibility for such changes unless
City has given Consultant prior notice and has received from Consultant
written consent for such changes.
18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the
engineer or architect in charge of or responsible for the work. City agrees
that Consultant shall not be liable for claims, liabilities or losses arising out
of, or connected with (a) the modification or misuse by City, or anyone
authorized by City, of CADD data; (b) the decline of accuracy or
readability of CADD data due to inappropriate storage conditions or
it
• •
duration; or (c) any use by City, or anyone authorized by City, of CADD
data for additions to this Project, for the completion of this Project by
others, or for any other Project, excepting only such use as is authorized,
in writing, by Consultant. By acceptance of CADD data, City agrees to
indemnify Consultant for damages and liability resulting from the
modification or misuse of such CADD data. All original drawings shall be
submitted to City in the version of AutoCAD used by CITY in ".dwg" file
format on a CD, and should comply with the City's digital submission
requirements for Improvement Plans. The City will provide AutoCAD file
of City Title Sheets. All written documents shall be transmitted to City in
the City's latest adopted version of Microsoft Word and Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be
kept confidential unless City authorizes in writing the release of
information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents
his /her judgment as a design professional and is supplied for the general
guidance of City. Since Consultant has no control over the cost of labor
and material, or over competitive bidding or market conditions, Consultant
does not guarantee the accuracy of such opinions as compared to
contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including
costs, for infringement of any United States' letters patent, trademark, or
copyright infringement, including costs, contained in Consultant's drawings
and specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to
be performed under this Agreement. Consultant shall maintain complete
and accurate records with respect to the costs incurred under this
Agreement and any services, expenditures and disbursements charged to
City, for a minimum period of three (3) years, or for any longer period
required by law, from the date of final payment to Consultant under this
Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make
l-5
•
transcripts or copies of such records and invoices during regular business
hours. Consultant shall allow inspection of all work, data, Documents,
proceedings and activities related to the Agreement for a period of three
(3) years from the date of final payment to Consultant under this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until
satisfaction of the-dispute with respect to such payment. Such withholding
shall not be deemed to constitute a failure to pay according to the terms of
this Agreement. Consultant shall not discontinue work as a result of such
withholding. Consultant shall have an immediate right to appeal to the
City Manager or his /her designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the
rate of return that City earned on its investments during the time period,
from the date of withholding of any amounts found to have been
improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or
professional inexperience of Consultant which result in expense to City
greater than what would have resulted if there were not errors or
omissions in the work accomplished by Consultant, the additional design,
construction and /or restoration expense shall be borne by Consultant.
Nothing in this paragraph is intended to limit City's rights under any other
sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be
materially affected by the work performed under this Agreement, and (2)
prohibits such persons from making, or participating in making, decisions
that will foreseeably financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for
immediate termination of this Agreement by City. Consultant shall
fir•
•
•
indemnify and hold harmless City for any and all claims for damages
resulting from Consultant's violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, to City by Consultant and
conclusively shall be deemed served when delivered personally, or on the
third business day after the deposit thereof in the United States mail,
postage prepaid, first -class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Consultant to City shall be
addressed to City at:
Attention: Tom Rossmiller
Harbor Resources Division
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3041
Fax: 949 -723 -0589
trossmiller(acity.newport- beach.ca.us
All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Larry Paul
Larry Paul and Associates
2967 Michelson Drive, G244
Irvine, CA 92612
Phone: (949) 439 -1455
lawrence. paul cDsbcglobal.net
28. TERMINATION
In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that
party shall be deemed in default in the performance of this Agreement. If
such default is not cured within a period of two (2) calendar days, or if
more than two (2) calendar days are reasonably required to cure the
default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of
default, specifying the nature of such default and the steps necessary to
cure such default, the non - defaulting party may terminate the Agreement
forthwith by giving to the defaulting party written notice thereof.
0 0
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by
giving seven (7) calendar days prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for
services satisfactorily performed and costs incurred up to the effective
date of termination for which Consultant has not been previously paid. On
the effective date of termination, Consultant shall deliver to City all reports,
Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or
hereinafter enacted. In addition, all work prepared by Consultant shall
conform to applicable City, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the
Project Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained
herein, whether of the same or a different character.
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary
negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the
provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this
Agreement and the Scope of Services or any other attachments attached
hereto, the terms of this Agreement shall govern.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall continue in full force and
effect.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all
matters relating to it and any action brought relating to this Agreement
shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall
not discriminate against any subcontractor, employee or applicant for
employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first written above.
19
•
E
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
A Municipal Corporation
By: By:
City Attorney Dave Kiff,
for the City of Newport Beach Assistant City Manager
for the City of Newport Beach
CONSULTANT:
Larry Paul
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
n�
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPNIEl\'T
March 17, 2006
Mr. Tom Rossmiller
Manager, Harbor resources Division
City of Newport Beach
3300 Newport Blvd.
Newport Beach, Ca 92663
Dear Tom:
The Following is my Scheduled Billing Rate:
Larry Paul - S 160.00 per hour
Administrative Costs @ S21.50 per hour.
Sincerely,
Larry Paul
Larry Paul
949.439.1455
I a rrypau l and as soc.com
2967 Michelson Drive G244 Irvine, CA 92612
r� i
LARRY PAUL AND ASSOCIATES
WATERS]IED R COASTAL PROJECT DEVELOPMENT
March 17, 2006
Mr. Tom Rossmiller
Manager, Harbor Resources Division
City of Newport Beach
3300 Newport Beach, Ca 92663
Dear Tom,
I propose the following scope of work for the City of Newport Beach's Harbor Resources
Division. The work will be centered on consulting services for inter - governmental
relations, project development, and project implementation for the following projects:
I. Maintenance dredging of the federal channels in Lower Newport Bay.
Provide assistance in securing funding and keeping the Corps of Engineers
committed to completing the project in accordance with a mutually agreed upon
scheduled is needed.
2. Funding and implementation of the Upper Newport Bay Ecosystem
Restoration Project. Assistance in (1) working with local, state and federal
elected officials to acquire project funding; (2) developing a consensus on how to
phase in the work that can be accomplished with available funds; (3) negotiating
with CMANC members to ensure that project is ranked a high priority relative to
other Statewide projects; (4) keeping the Corps of Engineers on the construction
schedule to complete this multi -year project.
3. Development of a Harbor Area Management Plan implementation Strategy.
Assistance in negotiating a balanced valuation of beneficial uses among
competing interests to ensure the successful completion of the Plan.
4. Assistance in finalizing the renewal of the Regional General Permit. Work is
needed to ensure that the permits progress through the approval process of the
various Boards and Commissions.
Assistance in developing a Remediation Plan Strategy for the Rhine Channel.
The Rhine Channel has been named a toxic spot by the State Water Resources
Control board and studies have been completed to detennine the extent of
contamination. Assistance with the development of remediation strategy is
needed to ensure that an environmentally acceptable clean -up is developed that is
fundable with local state and federal assistance.
Larry Paul
949.439.1455
IarrypauI and assoc.com
2967 Michelson Drive G244 Irvine, CA 92612
• •
Larry Paul & Associates
City of Newport Beach Proposal
March 17, 2006
Page 2
6. Assistance in promoting better coordination and cooperation with the
Orange County Sheriffs Harbor Patrol on enforcement and operations
issues. Assistance in developing a new cooperative agreement with the
Harbor Patrol for mooring administration is needed in this task.
Thank you for the opportunity to submit this proposal. I look forward to working with
you in the very near future.
Very truly yours,
Larry Paul
Larry Paul & Associates
949- 439 -1455
G� J