HomeMy WebLinkAboutC-4598 - On-Call PSA for Telecommunications Technological ConsultantAMENDMENT NO. TWO TO
ON -CALL PROFESSIONAL SERVICES AGREEMENT
WITH KRAMER FIRM, INC. FOR
\ifv TELECOMMUNICATIONS TECHNOLOGICAL CONSULTANT
THIS AMENDMENT NO. TWO TO AGREEMENT FOR ON -CALL
PROFESSIONAL SERVICES ('Amendment No. Two), is entered into as of this It lay
of September, 2012 ('Effective Date) by and between the CITY OF NEWPORT BEACH,
a California Municipal Corporation ( "City "), and Kramer Firm, Inc., a California
corporation ('Consultant), whose address is 2GS Barrington Ave., Suite 306, Los
Angeles, CA 90025 and is made with reference to the 06wing:
RECITALS:
A. On August 6, 2010, City and Consultant entered into an On -Call Professional
Services Agreement ('Agreement) for as- needed telecommunications
technological consulting ('Project).
B. On October 31, 2011, City and Consultant entered into Amendment No. One to
the Agreement ('Amendment No. One) to extend the term of the Agreement.
C. City and Consultant mutually desire to enter into this Amendment No. Two to
extend the term of the Agreement and to update the Citys standard provisions.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 1 of the Agreement shall be amended in its entirety and replaced with the
following: The term of this Agreement shall commence on August 6, 2010 and shall on
September 30, 2013 unless terminated earlier as set forth herein.
2. ADMINISTRATION /NOTICES
Section 6 of the Agreement shall be amended to reflect that the Director of the
Community Development Department shall be the Project Administrator in addition to
the contact for notices to the City pursuant to Section 26 of the Agreement.
3. INSURANCE
Section 14 of the Agreement shall be amended in its entirety and replaced with
the following: Without limiting Consultants indemnification of City, and prior to
commencement of Work, Consultant shall obtain, provide and maintain at its own
expense during the term of this Agreement or for other periods as specified in this
Agreement, policies of insurance of the type, amounts, terms and conditions described
in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by
reference.
4. EQUAL OPPORTUNITY EMPLOYMENT
Section 37 of the Agreement shall be amended in its entirety and replaced with
the following: Consultant represents that it is an equal opportunity employer and it shall
not discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex, age or any
other impermissible basis under law.
5. COUNTERPARTS
This Agreement may be executed in two (2) or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one (1) and the
same instrument.
6. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Kramer Firm, Inc. Page 2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
One on the dates written below.
APPROVED AS TO FORM:
CITY AT�,O N Y'S OFFICE
Dater
By:
Aaron C. Harp
City Attorney
ATTEST:
Date: �' Z$ '
By:
Leilani I. Brown
City Clerk WM
CA P
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 'I- l3 - /Z
By:
Kimberly Brandt, AIGIP
Community Development Director
CONSULTANT: Kramer Firm, Inc., a
California corporation
Date: 'i —
By: '�
nathanramer
Presiden reasurer
[END OF SIGNATURES]
Attachments: Exhibit C — Insurance Requirements
A 10-00214/f.-1 appsl caticycoml wpdocsld0271 p006100015327. doc
Kramer Firm, Inc. Page 3
EXHIBIT C
1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1.1 Provision of Insurance. Without limiting Consultant's
indemnification of City, and prior to commencement of Work, Consultant shall
obtain, provide and maintain at its own expense during the term of this
Agreement, policies of insurance of the type and amounts described below and
in a form satisfactory to City. Consultant agrees to provide insurance in
accordance with requirements set forth here. If Consultant uses existing
coverage to comply and that coverage does not meet these requirements,
Consultant agrees to amend, supplement or endorse the existing coverage.
1.2 Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to
transact business of insurance in the State of California, with an assigned
policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or
larger) in accordance with the latest edition of Best's Key Rating Guide, unless
otherwise approved by the City's Risk Manager.
1.3 Coverage Requirements.
1.3.1 Workers' Compensation Insurance. Consultant shall
maintain Workers' Compensation Insurance, statutory limits, and Employer's
Liability Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700 of
the Labor Code.
1.3.1.1 Consultant shall submit to City, along with the
certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
1.3.2 General Liability Insurance. Consultant shall maintain
commercial general liability insurance, and if necessary umbrella liability
insurance, with coverage at least as broad as provided by Insurance Services
Office form CG 00 01, in an amount not less than one million dollars ($1,000,000)
per occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, products - completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract) with no endorsement or modification limiting the scope of coverage for
liability assumed under a contract.
1.3.3 Automobile Liability Insurance. Consultant shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00
01 covering bodily injury and property damage for all activities of 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 each
accident.
1.4 Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
1.4.1 Waiver of Subrogation. All insurance coverage maintained
or procured pursuant to this agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees and
volunteers or shall specifically allow Consultant or others providing insurance
evidence in compliance with these requirements to waive their right of recovery
prior to a loss. Consultant hereby waives its own right of recovery against City,
and shall require similar written express waivers from each of its subconsultants.
1.4.2 Additional Insured Status. All liability policies including
general liability, excess liability, pollution liability, and automobile liability, but not
including professional liability, shall provide or be endorsed to provide that City
and its officers, officials, employees, and agents shall be included as insureds
under such policies.
1.4.3 Primary and Non Contributory. All liability coverage shall
apply on a primary basis and shall not require contribution from any insurance or
self- insurance maintained by City.
1.4.4 Notice of Cancellation. All policies shall provide City with
thirty (30) days notice of cancellation (except for nonpayment for which ten (10)
days notice is required) or nonrenewal of coverage for each required coverage.
1.5 Additional Agreements Between the Parties. The parties hereby
agree to the following:
1.5.1 Evidence of Insurance. Consultant shall provide certificates
of insurance to City as evidence of the insurance coverage required herein, along
with a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to commencement
of performance. Current certification of insurance shall be kept on file with City at
all times during the term of this Agreement. City reserves the right to require
complete, certified copies of all required insurance policies, at any time.
1.5.2 City's Right to Revise Requirements. The City reserves the
right at any time during the term of the Agreement to change the amounts and
types of insurance required by giving the Consultant sixty (60) days advance
written notice of such change. If such change results in substantial additional
cost to the Consultant, the City and Consultant may renegotiate Consultant's
compensation.
1.5.3 Enforcement of Agreement Provisions. Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City
to inform Consultant of non - compliance with any requirement imposes no
additional obligations on the City nor does it waive any rights hereunder.
1.5.4 Requirements not Limiting. Requirements of specific
coverage features or limits contained in this Section are not intended as a
limitation on coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given coverage
feature is for purposes of clarification only as it pertains to a given issue and is
not intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type.
1.5.5 Self- insured Retentions. Any self- insured retentions must
be declared to and approved by City. City reserves the right to require that self -
insured retentions be eliminated, lowered, or replaced by a deductible. Self -
insurance will not be considered to comply with these requirements unless
approved by City.
1.5.6 City Remedies for Non Compliance If Consultant or any
subconsultant fails to provide and maintain insurance as required herein, then
City shall have the right but not the obligation, to purchase such insurance, to
terminate this agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's sole
option, be deducted from amounts payable to Consultant or reimbursed by
Consultant upon demand.
1.5.7 Timely Notice of Claims. Consultant shall give City prompt
and timely notice of claims made or suits instituted that arise out of or result from
Consultant's performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies.
1.5.8 Consultant's Insurance. Consultant shall also procure and
maintain, at its own cost and expense, any additional kinds of insurance, which in
its own judgment may be necessary for its proper protection and prosecution of
the Work.
S
AMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT WITH
KRAMER FIRM, INC. FOR ON -CALL
TELECOMMUNICATIONS TECHNOLOGICAL
CONSULTING SERVICES
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
( "Amendment No. One "), is entered into as of this SjW day of October, 2011, by and
between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City"),
and Kramer Firm, Inc. a California corporation whose address is 2001 S. Barrington
Avenue, Suite 306, Los Angeles, California 90025 ( "Consultant'), and is made with
reference to the following:
RECITALS:
A. On August 6, 2010, City and Consultant entered into a Professional Services
Agreement ( "Agreement') for on -call telecommunications technological
consulting services on an as- needed basis ( "Project ").
B. City desires to enter into this Amendment No. One to extend the term of the
Agreement to September 1, 2012.
C. City and Consultant mutually desire to amend the agreement, as provided below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows: .
1. TERM
Section 1 of the Agreement, shall be amended in its entirety and replaced with the
following: The term of the Agreement shall terminate on September 1, 2012, unless
terminated earlier as provided for in Agreement.
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants set forth
in the Agreement shall remain unchanged and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
One on the dates written below.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Date: (G — 2 Y — 1 (
By:
"V1— C
Aaron Harp
City Attorney
ATTEST:
Date:
4 X �1�
_i Brow -ii
City Clerk
F
c
hh:�IfiOf.r%
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 16 ,,2S- /
By:
Kim erly Brandt,ICP VA
Community Deve pment Director
CONSULTANT: Kramer Firm, Inc.,
a California corporation
Date: (t.,. 2Y — 7,--0
By:
Jo athan ramer
P esiden / Treasurer
Attachments: Exhibit A — Professional Services Agreement
�I
PROFESSIONAL SERVICES AGREEMENT WITH
KRAMER.FIRM, INC. FOR ON -CALL
TELECOMMUNICATIONS TECHNOLOGICAL
CONSULTING SERVICES
THIS AGREEMENT FOR " PROFES ZONAL SERVICES ("Agreement°) is made
6 r+
and entered into as of this day of 2010, by and between the
CITY OF NEWPORT BEACH, a Calif&n6d Municipal Corporation ("City"), and
KRAMER.FIRM, INC., a California Corporation, whose address is 2001 S. Barrington
Avenue, Suite 306, Los_ Angeles, Califomia, 90025 ( "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 cant' on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
C. City desires to engage Consultant to provide on -call telecommunications
technological consulting services on an as- needed basis ( "Project"). Consulting
services may include review of telecommunication application submittals,
assessment of technological data submitted in support of applications, and
preparation of staff analyses, recommendations and reports.
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 Jonathan L.
Kramer.
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 1st day of September, 2011, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall provide "On -Call" telecommunications technological consulting services
described in the Scope of Services attached hereto as Exhibit A and incorporated
herein by reference. Upon verbal or written request from the Project Administrator,
Consultant shall provide a letter proposal for services requested by the City (hereinafter
referred to as the °Letter Proposal "). The Letter Proposal shall include the following:
A. A detailed description of the services to be provided;
B. The position of each person to be assigned to perform the services, and the
name of the individuals to be assigned, if available;
C. The estimated number of hours and cost to complete the services; and
D. The time needed to finish the specific project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall
diligently perform the duties in the approved Letter Proposal.
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 Dollars
and noM00 ($50,000.00) without prior written authorization from City. No billing rate
changes shall be made during the term of this Agreement without the prior written
approval of City.
Professional Services Agreement Page 2
4.1 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultants bills shall include the name
of the person who performed the Work, a brief description of the Services
performed and /or the specific task in the Scope of Services to which it
relates, the date the Services were performed, the number of hours spent
on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
Services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this.Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any Work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
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 Proje'bt 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 JONATHAN L. KRAMER 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
Professional Services Agreement Page 3
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 PLANNING DEPARTMENT, DAVID LEPO,
PLANNING DIRECTOR, or his designee, 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. By
delivery of completed Work, Consultant certifies that the Work conforms to
the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
Professional Services Agreement Page 4
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
Work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, agents, volunteers,
and employees (collectively, the "Indemnified Parties`') from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, °Claims °), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Consultant's presence or
activities conducted on the Project (including the negligent and/or willful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees, vendors,
suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any
of them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require Consultant
to indemnify the Indemnified Parties from any Claim arising from the sole negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be
construed as authorizing any award of attorney's fees in any action on or to enforce the
terns 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
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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 duty--
authorized designee informed on a regular basis regarding the status and progress of the
Project, activities performed and planned, and any meetings that have been scheduled or
are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of
Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement, policies of insurance of the type and amounts described below and in
a form satisfactory to City.
A. Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this contract.
City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Consultant shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the Work
hereunder by Consultant, his agents, representatives, employees or
subconsultants. The cost of such insurance shall be included in
Consultant's bid.
B. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A- (or higher) and Financial Size
Professional Services Agreement Page 6
Category Class VII (or larger) in accordance with the latest edition of
Bests Key Rating Guide, unless otherwise approved by the Citys Risk
Manager.
C. Coverage Requirements.
Workers' Compensation Covera e.. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and
Employer's Liability Insurance (with limits of at least one million
dollars ($1,000,000)) for Consultants employees in accordance
with the laws of the State of California, Section 3700 of the Labor
Code In addition, Consultant shall require each subconsultant to
similarly maintain Workers' Compensation Insurance and
Employer's Liability Insurance in accordance with the laws of the
State of California, Section 3700 for all of the subconsultant's
employees.
Any notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least thirty (30)
calendar days (ten (10) calendar days written notice of non-
payment of premium) prior to such change.
Consultant shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its .
officers, agents, employees and volunteers.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation, blanket
contractual liability.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
Work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each accident.
D. Other Insurance Provisions or Requirements.
The policies are to contain, or be endorsed to contain, the following provisions:
i. Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents,
officials, employees and. volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a
loss. Consultant hereby waives its own right of recovery against
Professional Services Agreement Page 7
City, and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
Enforcement of Contract Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes
no additional obligations on the City nor does it waive any rights
hereunder.
iii. Requirements not Limiting. Requirements of specific coverage
features or limits contained in this Section are not intended as a
limitation on coverage, limits or other requirements, or a waiver of
any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue and is not intended by any party
or insured to be all inclusive, or to the exclusion of other coverage,
or a waiver of. any type.
iv. Notice of Cancellation. Consultant agrees to provide to City with
thirty (30) days notice of cancellation (except for nonpayment for
which ten (10) days notice is required) or nonrenewal of coverage
for each required coverage.
E. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or'suits instituted that arise out of or result from
Consultant's performance under this Agreement.
F. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be provided
under this Agreement shall not be assigned, transferred contracted or subcontracted out
without the prior written approval of City. Any of the following shall be construed as an
assignment: The sale, assignment, transfer or other disposition of any of the issued
and outstanding capital stock of Consultant, or of the interest of any general partner or
joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -
venture or syndicate or cotenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-
five percent (25 %) or more of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
The parties recognize that a
substantial
inducement to
City for entering into this
Agreement is the professional
reputation,
experience and
competence of Consultant.
Assignments of any or all rights,
duties
or obligations of
the Consultant under this
Professional Services Agreement Page 8
Agreement will be permitted only with the express written consent of City. Consultant shall
not subcontract any portion of the Work to be performed under this Agreement without the
prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing produced
(hereinafter "Documents "), prepared or caused to be prepared by Consultant, its
officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole
right to use such materials in its discretion without further compensation to Consultant
or any other party. Consultant shall, at Consultant's expense, provide such Documents
to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant pursuant to
this Agreement are not intended or represented to be suitable for reuse by City or
others on any other project. Any use of completed Documents for other projects and
any use of incomplete- Documents without specific-written - authorization- firom- -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
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. 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.
21. 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
Professional Services Agreement Page 9
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.
22. 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.
23. 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 accom plished by
Consultant, the additional design, construction and/or restoration expense shall be
bome by Consultant. Nothing in this paragraph is intended to limit City's rights under the
law or any other sections of this Agreement.
24. 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.
26. NOTICES
All notices, demands, requests or approvals to be given under the terms of this Agreement
shall be given in writing, and conclusively shall be deemed served when delivered
personally, or on the third business day after the deposit thereof in the United States mail,
Professional Services Agreement Page 10
postage prepaid, first -Gass mail, addressed as hereinafter provided. All notices, demands,
requests or approvals from Consultant to City shall be addressed to City at:
Attn:. David Lepo, Planning Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 -644 -3200
Fax: 949 -644 -3229
All notices, demands, requests or approvals from CITY to Consultant shall be addressed
to Consultant at:
Attention: Jonathan L. Kramer
Kramer.Firm, Inc.
2001 S. Barrington Avenue, Suite 306
Angeles-, -GA- 90025 _ _.._ .._._ ......_.._.._. - - . ....... .....
Phone: (310) 312 -9900 x121
Fax: (310) 473 -5900
27. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Contract and Contract documents, the Consultant shall be
required to file any claim the Consultant may have against the City in strict conformance
with the Tort Claims Act (Government Code sections 900 et seq.).
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, and thereafter
diligently take steps to cure the default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion and
without cause, of terminating this Agreement at any time by giving seven (7) calendar
days prior written notice to Consultant. In the event of termination under this Section,
City shall pay Consultant for Services satisfactorily performed and costs incurred up to
the effective date of termination for which Consultant has not been previously paid. On
the effective date of termination, Consultant shall deliver to City all reports, Documents
and other information developed or accumulated in the performance of this Agreement,
Whether in draft or final form.
Professional Services Agreement Page 11
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply
regulations and requirements of all governmental entities,
or municipal, whether now in force or hereinafter enacted.
by Consultant shall conform to applicable City, county,
regulations and permit requirements and be subject
Administrator and City.
30. WAIVER
with all statutes, ordinances,
including federal, state, county
In addition, all Work prepared
state and federal laws, rules,
to approval of the Project
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
whatsoever between the parties hereto, and all pr
of whatsoever kind or nature are merged herei
covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
understanding of every kind or nature
eliminary negotiations and agreements
n. No verbal agreement or implied
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. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
34. 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.
35. 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
Professional Services Agreement Page 12
The laws of the State of California shall govern this Agreement and all matters relating
to it and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
37. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment because
of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFF
,LCE OF THE CITY ATTORNEY:
By:�WAA
Leonie Mulvihill
Assistant City Attorney
for the City of Newport Beach
ATTEST:
By:
Leilani BrowA,
City Clerk -dd0,.M&.-
;21-rPovk�
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:_.�
vid Kiff
City Manager
for the City of Newport Beach
CONSULTANT: Kramer.Firm, Inc.
A California Corporation
By:
Jonathan L. Kramer
Title:` -President
Print Name:,_JUN� KAP
nathan L. Kramer
reasurer
Print Name: NA t FtgNr''�
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
A08-00093 5.13.10
Professional Services Agreement Page 13
EXHIBIT "A"
SCOPE OF ON -CALL SERVICES
Jonathan L. Kramer, principal of Kramer.Firm, Inc., will provide telecommunication
technological consulting services and project management services on an as- needed
basis to the City of Newport Beach in conjunction with processing of wireless
telecommunication (wireless telecom) facility applications. Mr. Kramer and his staff will
function on behalf of the City in reviewing wireless telecom facility project submittals,
preparing staff analyses, recommendations and reports for Zoning Administrator and
City Council approvals, and assessment of technological data submitted in support of
applications.
As it is virtually impossible to establish a "not to exceed' cost at the outset of a project
such as this, Mr. Kramer's services will be provided on a "time and materials" basis.
_._ - Hourly- rates -arer- included-AS--Exhibit-013 - - _For--budgeting_-purposes, -$50,000:fl @-is-- --.___.._....._
authorized for this contract.
Professional Services Agreement Page 14
EXHIBIT "B"
SCHEDULE OF HOURLY RATES
JONATHAN L. KRAMER, ESQ.
$240.00 per hour
Professional Services Agreement Page 15
PROFESSIONAL SERVICES AGREEMENT WITH
j KRAMER.FIRM, INC. FOR ON -CALL
TELECOMMUNICATIONS TECHNOLOGICAL
CONSULTING SERVICES
THIS AGREEMENT FOR PROFES ZONAL SERVICES ( "Agreement ") is made
and entered into as of this &-fi day of W , 2010, by and between the
CITY OF NEWPORT BEACH, a Calif6rnid Municipal Corporation ( "City "), and
KRAMER.FIRM, INC., a California Corporation, whose address is 2001 S. Barrington
Avenue, Suite 306, Los Angeles, California, 90025 ( "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.
C. City desires to engage Consultant to provide on -call telecommunications
technological consulting services on an as- needed basis (`Project'). Consulting
services may include review of telecommunication application submittals,
assessment of technological data submitted in support of applications, and
preparation of staff analyses, recommendations and reports.
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 Jonathan L.
Kramer.
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 1st day of September, 2011, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall provide "On -Call' telecommunications technological consulting services
described in the Scope of Services attached hereto as Exhibit A and incorporated
herein by reference. Upon verbal or written request from the Project Administrator,
Consultant shall provide a letter proposal for services requested by the City (hereinafter
referred to as the "Letter Proposal "). The Letter Proposal shall include the following:
A. A detailed description of the services to be provided;
B. The position of each person to be assigned to perform the services, and the
name of the individuals to be assigned, if available;
C. The estimated number of hours and cost to complete the services; and
D. The time needed to finish the specific project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall
diligently perform the duties in the approved Letter Proposal.
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 Dollars
and no /100 ($50,000.00) without prior written authorization from City. No billing rate
changes shall be made during the term of this Agreement without the prior written
approval of City.
Professional Services Agreement Page 2
4.1 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the Work, a brief description of the Services
performed and/or the specific task in the Scope of Services to which it
relates, the date the Services were performed, the number of hours spent
on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
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 JONATHAN L. KRAMER 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
Professional Services Agreement Page 3
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 PLANNING DEPARTMENT, DAVID LEPO,
PLANNING DIRECTOR, or his designee, 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. By
delivery of completed Work, Consultant certifies that the Work conforms to
the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
Professional Services Agreement Page 4
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
Work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, agents, volunteers,
and employees (collectively, the "Indemnified Parties ") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Consultant's presence or
activities conducted on the Project (including the negligent and /or willful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees, vendors,
suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any
of them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require Consultant
to indemnify the Indemnified Parties from any Claim arising from the sole negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be
construed as authorizing any award of attorney's fees in any action on or to enforce the
terms of this Agreement. This indemnity shall apply to all claims and liability regardless
of whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the Work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of
Professional Services Agreement Page 5
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, policies of insurance of the type and amounts described below and in
a form satisfactory to City.
A. Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this contract.
City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Consultant shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the Work
hereunder by Consultant, his agents, representatives, employees or
subconsultants. The cost of such insurance shall be included in
Consultant's bid.
B. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A- (or higher) and Financial Size
Professional Services Agreement Page 6
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
C. Coverage Requirements.
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and
Employer's Liability Insurance (with limits of at least one million
dollars ($1,000,000)) for Consultant's employees in accordance
with the laws of the State of California, Section 3700 of the Labor
Code In addition, Consultant shall require each subconsultant to
similarly maintain Workers' Compensation Insurance and
Employer's Liability Insurance in accordance with the laws of the
State of California, Section 3700 for all of the subconsultant's
employees.
Any notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least thirty (30)
calendar days (ten (10) calendar days written notice of non-
payment of premium) prior to such change.
Consultant shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation, blanket
contractual liability.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
Work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each accident.
D. Other Insurance Provisions or Requirements.
The policies are to contain, or be endorsed to contain, the following provisions:
i. Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents,
officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a
loss. Consultant hereby waives its own right of recovery against
Professional Services Agreement Page 7
City, and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
ii. Enforcement of Contract Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes
no additional obligations on the City nor does it waive any rights
hereunder.
iii. Requirements not Limiting. Requirements of specific coverage
features or limits contained in this Section are not intended as a
limitation on coverage, limits or other requirements, or a waiver of
any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue and is not intended by any party
or insured to be all inclusive, or to the exclusion of other coverage,
or a waiver of any type.
iv. Notice of Cancellation. Consultant agrees to provide to City with
thirty (30) days notice of cancellation (except for nonpayment for
which ten (10) days notice is required) or nonrenewal of coverage
for each required coverage.
E. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Consultant's performance under this Agreement.
F. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be provided
under this Agreement shall not be assigned, transferred contracted or subcontracted out
without the prior written approval of City. Any of the following shall be construed as an
assignment: The sale, assignment, transfer or other disposition of any of the issued
and outstanding capital stock of Consultant, or of the interest of any general partner or
joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -
venture or syndicate or cotenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -
five percent (25 %) or more of the assets of the corporation, partnership or joint-venture.
16. SUBCONTRACTING
The parties recognize that a substantial
Agreement is the professional reputation,
Assignments of any or all rights, duties
inducement to City for entering into this
experience and competence of Consultant.
)r obligations of the Consultant under this
Professional Services Agreement Page 8
Agreement will be permitted only with the express written consent of City. Consultant shall
not subcontract any portion of the Work to be performed under this Agreement without the
prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing produced
(hereinafter "Documents "), prepared or caused to be prepared by Consultant, its
officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole
right to use such materials in its discretion without further compensation to Consultant
or any other party. Consultant shall, at Consultant's expense, provide such Documents
to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant pursuant to
this Agreement are not intended or represented to be suitable for reuse by City or
others on any other project. Any use of completed Documents for other projects and
any use of incomplete Documents without specific written authorization from Consultant
will be at City's sole risk and without liability to Consultant. Further, any and all liability
arising out of changes made to Consultant's deliverables under this Agreement by City
or persons other than Consultant is waived against Consultant and City assumes full
responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES
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. 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.
21. 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
Professional Services Agreement Page 9
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.
22. 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.
23. 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 accom plished by
Consultant, the additional design, construction and /or restoration expense shall be
borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the
law or any other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
25. 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.
26. NOTICES
All notices, demands, requests or approvals to be given under the terms of this Agreement
shall be given in writing, and conclusively shall be deemed served when delivered
personally, or on the third business day after the deposit thereof in the United States mail,
Professional Services Agreement Page 10
postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands,
requests or approvals from Consultant to City shall be addressed to City at:
Attn: David Lepo, Planning Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 - 644 -3200
Fax: 949 -644 -3229
All notices, demands, requests or approvals from CITY to Consultant shall be addressed
to Consultant at:
Attention: Jonathan L. Kramer
Kramer.Firm, Inc.
2001 S. Barrington Avenue, Suite 306
Los Angeles, CA 90025
Phone: (310) 312 -9900 x121
Fax: (310) 473 -5900
27. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Contract and Contract documents, the Consultant shall be
required to file any claim the Consultant may have against the City in strict conformance
with the Tort Claims Act (Government Code sections 900 et seq.).
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, and thereafter
diligently take steps to cure the default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion and
without cause, of terminating this Agreement at any time by giving seven (7) calendar
days prior written notice to Consultant. In the event of termination under this Section,
City shall pay Consultant for Services satisfactorily performed and costs incurred up to
the effective date of termination for which Consultant has not been previously paid. On
the effective date of termination, Consultant shall deliver to City all reports, Documents
and other information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
Professional Services Agreement Page 11
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. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
34. 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.
35. 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
Professional Services Agreement Page 12
The laws of the State of California shall govern this Agreement and all matters relating
to it and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
37. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment because
of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFF CE OF THE CITY ATTORNEY:
�
By: C / 1 t
Leonie Mulvihill
Assistant City Attorney
for the City of Newport Beach
ATTEST:
& - V .mod { /Ytl �V
Leilani Brow A,
VVV
City Clerk ®,,ma.-
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
vid Kiff
City Manager
for the City of Newport Beach
CONSULTANT: Kramer.Firm, Inc.
A California Corporation
L. Kramer
r'
Print Name: 'Jy(\Jth'c FfAC'J f
M
L. Kramer
Print Name: 41JN Dfpe-
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
A08 -00093 5.13.10
Professional Services Agreement Page 13
EXHIBIT "A"
SCOPE OF ON -CALL SERVICES
Jonathan L. Kramer, principal of Kramer.Firm, Inc., will provide telecommunication
technological consulting services and project management services on an as- needed
basis to the City of Newport Beach in conjunction with processing of wireless
telecommunication (wireless telecom) facility applications. Mr. Kramer and his staff will
function on behalf of the City in reviewing wireless telecom facility project submittals,
preparing staff analyses, recommendations and reports for Zoning Administrator and
City Council approvals, and assessment of technological data submitted in support of
applications.
As it is virtually impossible to establish a "not to exceed' cost at the outset of a project
such as this, Mr. Kramer's services will be provided on a "time and materials" basis.
Hourly rates are included AS Exhibit "B ". For budgeting purposes, $50,000.00 is
authorized for this contract.
Professional Services Agreement Page 14
14ANWIllutui
SCHEDULE OF HOURLY RATES
JONATHAN L. KRAMER, ESQ.
$240.00 per hour
Professional Services Agreement Page 15