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HomeMy WebLinkAbout27 - Professional Services Agreement—Civic Center Audit��W PoRT CITY OF =s NEWPORT BEACH c'qtiFogP City Council Staff Report November 24, 2015 Agenda Item No. 27 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Aaron C. Harp, City Attorney - 949-644-3131 aharp@newportbeachca.gov PREPARED BY: Michael Torres, Assistant City Attorney TITLE: Professional Services Agreement—Civic Center Audit ABSTRACT: At the June 16, 2015 meeting, the City Council directed the City Attorney's Office to hire an independent outside manager to oversee an audit of the Civic Center Project. The City Council further directed our office to assist the independent outside manager to issue a request for qualifications (RFQ) and contract with an outside audit firm to conduct the actual audit work. Pursuant to the City Council's direction, our office issued an RFQ for an independent outside manager, conducted interviews, and entered into a professional services agreement with Allyson M. Gipson of Harris & Associates, Inc. Our office assisted Ms. Gipson with issuing a second RFQ for an audit firm, and conducting interviews, which now results in a recommendation by Ms. Gipson to contract with RW Block Consulting, Inc. to conduct an audit of the Civic Center Project. RECOMMENDATIONS: a) Authorize the Mayor and City Clerk to execute the professional services agreement with RW Block Consulting, Inc. b) Approve Budget Amendment No. 16BA-_, to increase expenditure appropriations by $612,920 from the General Fund unappropriated fund balance to the City Council's budget for professional and technical services, 01005005-811008. FUNDING REQUIREMENTS: The Civic Center Audit is proposed to be completed in two phases; the first phase consists of a general overview of the project and, if needed, the second phase involves a more detailed review of certain project aspects. The first phase is proposed with a not to exceed cost of $110,000 and the second phase, if needed, is proposed with a not to exceed cost of $450,000. The combined cost for the two phases of audit work performed by RW Block Consulting, Inc. is proposed to not exceed cost $560,000. 27-1 Civic Center Audit November 24, 2015 Page 2 DISCUSSION: On June 16, 2015, the City Council directed that an audit of the Civic Center Project be performed. The goals of the audit are to identify areas that were done correctly, areas that could use improvement, and if applicable, areas where results fell short of expectations. Post construction audits of major projects are standard practice in the public and private sector and ensure that future projects are constantly improving. The City Council assigned our office the task of hiring and working with an independent outside manager to issue an RFQ and prepare a contract with an audit firm. Working under the City Council's direction, our office issued an RFQ, conducted interviews, and entered into a professional services agreement with Allyson M. Gipson of Harris & Associates, Inc. to serve as the independent outside manager. The professional services agreement between the City of Newport Beach (City) and Harris & Associates, Inc. provides for a not to exceed amount of $52,920 for all phases of the audit. Our office assisted Ms. Gipson in issuing an RFQ for an audit firm to conduct the actual audit work on the Civic Center Project. The audit RFQ was issued on September 15, 2015, and proposals were due by October 14, 2015. The City received twelve audit proposals from audit firms located throughout the country. Ms. Gipson, with our office's assistance, selected three audit firms for in-person interviews, which were conducted on November 4, 2015. Following the interviews, Ms. Gipson recommends the City enter into the attached professional services agreement with RW Block Consulting, Inc. RW Block Consulting proposes to conduct the audit in two phases; the first phase consists of a general overview of the project and has an anticipated completion date of February 29, 2016. The second phase, if needed, involves a more detailed review of certain project areas identified in the first phase as needing more review with an anticipated completion date of July 31, 2016. Ms. Gipson will be in attendance at the City Council meeting and available to answer any questions regarding her approach to the audit and/or her recommendation to proceed with RW Block Consulting, Inc. The original staff report prepared by the City Manager's Office for the Civic Center audit contained an estimated not to exceed budget of $100,000; however, the City Manager recognized $100,000 may not be a feasible dollar amount and provided for the City Council to revise the not to exceed cost based upon the actual proposals submitted by the independent outside manager and audit firm. The actual costs for all audit work is estimated to cost in excess of the original $100,000 estimated budget. The contract with Harris & Associates, Inc. has a not to exceed cost of $52,920 and the audit work proposed by RW Block Consulting, Inc. has an estimated not to exceed cost of $110,000 for phase one of the audit, and a not to exceed cost of $450,000 for the second phase of the audit. The total estimated not to exceed cost for all phases of the audit is $612,920, which includes the work performed by Harris & Associates, Inc. and 27-2 Civic Center Audit November 24, 2015 Page 3 RW Block Consulting, Inc. The estimated not to exceed audit cost is less than one percent of the total Civic Center Project cost. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers this item). ATTACHMENT: Attachment A - Professional Services Agreement with RW Block Consulting, Inc. Attachment B - Budget Amendment 27-3 ATTACHMENT A PROFESSIONAL SERVICES AGREEMENT WITH RW BLOCK CONSULTING, INC. FOR CIVIC CENTER AUDIT THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 24th day of November, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and RW BLOCK CONSULTING, INC., a Florida Corporation ("Consultant"), whose address is 871 Outer Road, Suite B, Orlando, FL 32814, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide an audit of the Civic Center project ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31, 2016, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be 27-3 performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Five Hundred Sixty Thousand Dollars and 00/100 ($560,000.00), without prior written authorization from City. The total not to exceed dollar amount includes a not to exceed amount of One Hundred Ten Thousand Dollars and 00/100 ($110,000.00) for the first phase of the Project and Four Hundred Fifty Thousand Dollars and 00/100 ($450,000.00) for the second phase of the Project. As explained further in the Scope of Services, the City reserves the right not to proceed with the second phase of the Project. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 The fees included in Section 4.1 include all reimbursable costs and expenses, including, but not limited to, travel and administrative overhead. Consultant RW Block Consulting, Inc. Page 2 27-4 is not entitled to any further reimbursement for costs and expenses under this Agreement. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Derek Hennessey to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the City Attorney's Office. City Attorney Aaron C. Harp or his designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one (1) 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. RW Block Consulting, Inc. Page 3 27-5 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy RW Block Consulting, Inc. Page 4 27-6 limits do not act as a limitation upon the amount of indemnification to be provided by 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. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. RW Block Consulting, Inc. Page 5 27-7 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 co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to RW Block Consulting, Inc. Page 6 27-8 Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. RW Block Consulting, Inc. Page 7 27-9 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Aaron C. Harp City Attorney City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 RW Block Consulting, Inc. Page 8 27-10 With Copy to: Attn: Allyson M. Gipson Vice President, Education Harris & Associates, Inc. 22 Executive Park, Suite 200 Irvine, CA 92614 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Derek Hennessey RW Block Consulting, Inc. 871 Outer Road, Suite B Orlando, FL 32814 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for RW Block Consulting, Inc. Page 9 27-11 which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. RW Block Consulting, Inc. Page 10 27-12 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] RW Block Consulting, Inc. Page 11 27-13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp City Attorney ATTEST: Date: -31 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Ed Selich Mayor CONSULTANT: RW Block Consulting, Inc., a Florida Corporation Date: By: Roy W. Block President Date: Bv: Tarryn Walsh Director of Finance [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements RW Block Consulting, Inc. Page 12 27-14 EXHIBIT A SCOPE OF SERVICES Consultant shall perform each phase of Work as set forth in this Exhibit A only upon receipt of prior written authorization from the City Attorney's Office. The Close -Out -Audit will analyze: (1) how the Project grew in cost, time and scope; (2) whether the contracts and amendments thereto complied with California law as well as industry standards; (3) how the Project may have followed or deviated from standard private industry practices for construction method and construction management; (4) the effectiveness of the value engineering process; (5) the quality of the City's management of the Project; (6) the merits of the Construction Manager at Risk vs. other construction management methods; (7) how the Project compares on a per square foot or parking stall basis to similar projects of this size and scope; (8) a review of the change order process, the amount of change orders, and whether the change orders were within industry norms; (9) a comparison of the cost impacts of change orders issued on the Project to similar projects; (10) the cost impacts of delays and plan alterations; and (11) the total Project costs as compared to similar projects. Phase I Goal: The goal of Phase I of the audit is to provide an overview of the Civic Center project costs by project area (i.e., parking structure, city hall, etc.) and an identification of specific areas where a detailed analysis could be performed. Based on the results of Phase I, the scope of Phase II will be determined. Phase I should include: 1. A review of the City's oversight and controls of the Civic Center project related to budget, scope and schedule. 2. A review of compliance with design and construction management contracts. 3. A review of financial controls and procedures. 4. A review of project reporting and authorization of changes related to cost, scope and schedule. 5. A review of payments made to C.W. Driver, including supporting documentation accompanying payment applications. 6. A quantification of the costs to -date throughout all phases of the project including design, pre -construction, procurement/bid, and final construction. 7. A comparison of the final costs of the project to the budget for each of the project phases by cost type. 8. Where applicable, identify the reasons why cost growth or variance from the budget for specific project areas has occurred. 9. A comparison of the final costs of the project areas to what would be considered reasonable for a comparable project. 10.A review of any potential conflicts of interest between parties involved in the project. RW Block Consulting, Inc. Page A-1 27-15 11.A limited review of the change orders and the change order process. 12.Additional analysis suggested by the auditor to assist in the determination of specific project areas that should be reviewed in more detail in Phase II. 13. Preparation of a Phase I written report including a recommendation for the project areas that should be reviewed in detail and other issues that should be analyzed. 14.A presentation of the Phase I Report to the City Council. 15. Preparation of a detailed Phase I I cost proposal. Schedule: Completion by February 29, 2016 Phase II Goal: The goal of Phase II of the audit is to perform a detailed analysis of the specific areas identified in Phase I that should be reviewed. Phase II should include an evaluation of the project controls and processes, analysis of costs for reasonableness considering market conditions, industry standards and other considerations, and recommendations for effective management and execution of future City of Newport Beach construction projects. Phase II should include: 1. A detailed cost evaluation of the project areas identified in the Phase I analysis. 2. An evaluation of the Project's procurement process for the major contracts and subcontracts. 3. A review of the Project's construction contract documents for compliance with State Law and industry standards. 4. An evaluation of how the scope of the Project evolved from inception to finish. This may include a review of the reasons why the scope changed, the cost of the scope changes and the approval process. 5. An evaluation of value engineering recommendations and whether recommendations were implemented and effective in reducing costs. 6. A detailed evaluation of the change orders including the amount of the change and the process for how change orders were negotiated and approved. 7. An evaluation of the claims on the project including the review process and reasonableness of the amount of the claims' resolution. 8. An evaluation of the project schedule and the impact of delays and deviations from the plan that may have occurred. 9. An evaluation of the performance of C.W. Driver, including, but not limited to, their compliance with the contract, communication with the City of Newport Beach, management of the subcontractors, change order negotiation, and effectiveness with schedule management and cost control. 10.An evaluation of the City of Newport Beach's management of the project, decision making processes, oversight of CW Driver, compliance with contract RW Block Consulting, Inc. Page A-2 27-16 requirements and performance relative to what is considered prudent for a public owner. 11. An evaluation of the City of Newport Beach's contracted design firm, including, but not limited to, their compliance with the contract, compliance with budget and schedule, the number of Requests for Information and the timeliness of responses, and effectiveness with cost control. 12. An evaluation of how the progress, scope, cost and schedule of the project were communicated to the City Council. 13. An evaluation of the project delivery system that was employed. 14.An analysis of project costs with respect to reasonableness and industry standard where applicable. 15.A discussion of "Lessons Learned" from the Civic Center Project and recommendations for future City of Newport Beach construction projects. 16. Preparation of a Phase II written report. 17.A presentation of the Phase II Report to the City Council. Schedule: Completion by July 31, 2016 General Note: Data and information gathering from and interviews with City, C.W. Driver and other project personnel will be necessary in both phases. Interface with the Audit Project Manager and the City Attorney should also be anticipated. RW Block Consulting, Inc. Page A-3 27-17 EXHIBIT B SCHEDULE OF BILLING RATES Phase I: Fee: Not to exceed $110,000.00 including all expenses Phase II: Fee: Not to exceed $450,000.00 including all expenses TOTAL NOT TO EXCEED: $560,000.00 RW Block Consulting, Inc. Page B-1 27-18 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. RW Block Consulting, Inc. Page C-1 27-19 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform RW Block Consulting, Inc. Page C-2 27-20 Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. RW Block Consulting, Inc. Page C-3 27-21 ATTACHMENT B City of Newport Beach BUDGET AMENDMENT 2015-16 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues X from unappropriated fund balance EXPLANATION: NO. BA- 16BA-016 AMOUNT: 12,920.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To increase expenditure appropriations from the General Fund Unappropriated Fund Balance to for the Civic Center Proiect audit. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Obiect Description 010 300000 General Fund - Fund Balance REVENUE ESTIMATES Org Object Description EXPENDITURE APPROPRIATIONS Signed Signed: Signed: Approval: Finance Di Administrative Approval: City Manager City Council Approval: City Clerk fu Amount Debit Credit $612,920.00 * Automatic $612,920.00 Date 27-22 Description Org Number 01005005 City Council Object Number 811008 Services Professional & Technical Project Number Org Number Object Number Project Number Signed Signed: Signed: Approval: Finance Di Administrative Approval: City Manager City Council Approval: City Clerk fu Amount Debit Credit $612,920.00 * Automatic $612,920.00 Date 27-22