HomeMy WebLinkAbout08 - PSA for Federal Advocacy Services Related to Harbor Dredging Efforts and ProgramsQ PpRT
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<,FOR�P City Council Staff Report
February 27, 2018
Agenda Item No. 8
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Raymund Reyes, Management Specialist
PHONE: 949-644-3325
TITLE: Request City Council Approval of Professional Services Agreement
with Carpi & Clay, Inc. for Federal Advocacy Services Related to
Harbor Dredging Efforts and Programs
ABSTRACT:
The City has been actively working the U.S. Army Corps of Engineers (Corps) and to a limited
extent, federal elected representatives, to present and educate them on our dredging needs
in Newport Harbor, as well as to get our project on the Corps' upcoming project funding list.
Keeping our project in focus and on the recommended funding list of both the Corps and the
many elected representatives that need to review and approve it is, and continues to be, a
significant challenge particularly because we do not have a presence in Washington, D.C.
and that so many other agencies and organizations are also competing for their attention and
support. In order to better ensure that the City's dredging project needs are understood and
stay in the forefront view of the federal agencies and elected representatives, staff is
recommending approval of a professional services agreement with Carpi & Clay, Inc. (Carpi
& Clay) to provide federal advocacy services to assist with advancing our harbor dredging
project(s) through the federal funding approval and permitting process.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this
action will not result in a physical change to the environment, directly or indirectly;
b) Approve a Professional Services Agreement with Carpi & Clay, Inc. for federal advocacy
services at a not -to -exceed fee of $141,000.00 and authorize the Mayor and City Clerk to
execute the Agreement; and
c) Approve Budget Amendment No. 18BA-026 appropriating $141,000.00 from the General
Plan Update project (01201928-980000-18M12) to Account No. 01080005-811008.
Request City Council Approval of Professional Services Agreement with Carpi & Clay, Inc.
for Federal Advocacy Services Related to Harbor Dredging Efforts and Programs
February 27, 2018
Page 2
FUNDING REQUIREMENTS:
Approval of the Budget Amendment will record and appropriate $141,000.00 in increased
expenditure appropriations from General Plan Update project. Funds will be placed in Public
Works Administration Professional Services Account No. 01080005-811008.
DISCUSSION:
The Corps is responsible for maintaining the federally authorized harbor design depths in
most of the harbor including the navigational channels, anchorage, turning basin and mooring
areas. Although most of the mooring areas are still within their design depth, both the
anchorage and turning basin as well as the majority of the main navigational channels require
dredging due to accumulated sediment deposits. The latest Corps bathometry survey of the
Lower Harbor completed in 2017 estimated that there is approximately 650,000 cubic yards
of sediment remaining over the original federal authorized design depth. These areas need
to be dredged in order to maintain adequate navigation. Additionally, said dredging will also
improve the tidal flushing action which will in turn further improve bay water quality.
The last major Lower Harbor dredging project in 2012 was successful in removing much of
the accumulated material however, due to financial limitations and sediment disposal
constraints, the project scope was reduced and a large amount of material was left and
remains to be removed. Since that dredging effort, the City has been interested in pursuing
another project to complete the dredging of the Lower Harbor to deepen it back to the original
design depths. Over the past couple of years, staff has been actively working at both the
federal agency and legislative levels to develop project support and funding. As it stands, the
City is currently funding and completing the necessary sediment testing effort required as part
of the first steps for dredging. Our next step is to ask for a $400,000 line item in the Corps'
2019 budget to prepare the necessary dredging design package as well as future funds to
conduct the actual full dredging project in the coming years. It should also be noted that due
to the limited federal funding, coupled with high demand across the nation for dredging, Corps
staff have advised us that projects with local matching funds will score higher and are more
likely to receive funding.
Understanding the timeline and the various budget milestones within the federal process,
Public Works staff is proactively taking measures to help expedite the dredging project
delivery process. An outside consultant is currently performing the necessary sediment
characterization study that will assist the Corps in designing a dredge and disposal plan for
Newport Harbor. Another consultant is currently working on development of an economic
impact analysis of Newport Harbor. This report will need to be submitted as part of the Corps'
proposed dredging Work Plan in March 2018.
It has also become apparent that in order to increase our dredging program's exposure and
federal funding chances, the City needs assistance with project advocacy and legislative
analysis services at the federal level. To address this need, the Finance Department's
Purchasing Division issued a Request for Proposals (RFP) in September 2017 in order to
solicit proposals from federal advocacy firms that have direct experience in obtaining funding
M.
Request City Council Approval of Professional Services Agreement with Carpi & Clay, Inc.
for Federal Advocacy Services Related to Harbor Dredging Efforts and Programs
February 27, 2018
Page 3
and approvals for federal dredging projects and related items. Nine (9) proposals were
received by City's Purchasing Agent as a result of the RFP.
The City evaluated all proposals using a Qualifications -Based Selection (QBS) process
focusing on the following criteria:
• Operational Qualifications and Experience of the Proposer;
• The Proposer's Demonstrated Understanding of the City's Scope and Requirements;
• The Proposer's Ability to Carry Out the Requested Services; and
• Proposed Service Costs.
The nine proposals were short-listed down to the top three firms that best fit the qualifications
and experience requested, then they were reviewed/evaluated in further detail. Based on the
evaluations, Carpi & Clay, Inc. (Carpi & Clay) was deemed to be the highest rated and best -
qualified proposer to assist the City with pursuit of a federally funded and approved dredging
project.
Carpi & Clay is a California corporation established in 1986 that focuses on representing,
advancing and protecting the financial, legislative and regulatory interests of various
government agencies. Carpi & Clay has extensive involvement in California water related
issues as well as extensive experience working with other California port and harbor cities
such as San Francisco, Long Beach, Santa Barbara and Santa Cruz. It should also be noted
that Carpi & Clay currently serves as the federal advocacy consultant for the California Marine
Affairs and Navigation Conference (CMANC) which is a coalition of California harbors and
ports dedicated to ensuring that California's maritime interests are supported by the federal
and state governments to the greatest extent possible. (The City has been a standing
member of CMANC and is currently on the Board.) Carpi & Clay operates through their
Washington D.C. office and serves as a local, direct connection with federal legislators and
regulatory agencies, particularly the Corps Headquarters. Based on the evaluation of the
firm's qualifications and experience, Public Works recommends awarding a contract to Carpi
& Clay for federal advocacy services. Following cost negotiations, Carpi & Clay has agreed
to a $4,700 per month retainer. This includes all overhead operating costs and an annual
travel trip to Newport Beach. The agreement will be for a thirty (30) month term with a not -to -
exceed amount of $141,000.00.
During the agreement period, Carpi & Clay will work with the City in the development of a
detailed legislative and regulatory agenda, prioritize items, assess strategy, and formulate
plans of action in order to further the City's harbor interests. They will serve as an advocate
of the City by attending meetings with various legislative groups, bodies and committees. In
doing so, the City will be well represented in its efforts to secure federal funding, gather and
act upon opportunities for grant funding, and actively lobby federal agencies, Congress, the
White House and other federal agency officials in garnering support of City projects and
priorities.
RX
Request City Council Approval of Professional Services Agreement with Carpi & Clay, Inc.
for Federal Advocacy Services Related to Harbor Dredging Efforts and Programs
February 27, 2018
Page 4
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:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Professional Services Agreement with Carpi & Clay, Inc.
Attachment B — Budget Amendment
ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH CARPI & CLAY, INC. FOR
FEDERAL ADVOCACY SERVICES — DREDGING EFFORTS & PROGRAMS
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 27th day of February, 2018 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and CARPI & CLAY, INC., a California corporation ("Consultant"), whose address is 601
New Jersey Avenue, NW, Suite 300, Washington, D.C. 20001, 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 professional advocacy services
related the City's legislative policy interests and assist in the development of
strategies for advancing actions at the federal level that are beneficial to the City
and its ocean/harbor dredging programs, projects and services, including securing
federal funding to carry out the City's dredging efforts ("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:
The term of this Agreement shall commence on the Effective Date, and shall
terminate on August 31, 2020, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
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3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on fixed fee basis in accordance
with the provisions of this Section and the Schedule of Billing attached hereto as Exhibit
B and incorporated herein by reference. Consultant's compensation for all Work
performed in accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed One Hundred Forty One Thousand Dollars and
001100 ($141,000.00), without prior written authorization from City. No billing 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. City shall pay Consultant no later than thirty (30)
calendar days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
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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 Julie Minerva 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 Public Works Department. City's
Public Works Director or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. 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 legally
recognized professional standards.
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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 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
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shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall 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 orjoint 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.
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16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
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.
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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.
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.
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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: Public Works Director
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Julie Minerva
Carpi & Clay, Inc.
601 New Jersey Avenue, NW, Suite 300
Washington, D.C. 20001
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
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forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. 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.
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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 Controllinq 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.
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]
Carpi & Clay, Inc. Page 10
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 2 �g
City Attorney
ATTEST:
Date:
in
Leilani 1. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Marshall "Duffy" Duffield
Mayor
CONSULTANT: Carpi & Clay, Inc., a
California corporation
Date:
By:
Kenneth Carpi
President and Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B -- Schedule of Billing Rates
Exhibit C — Insurance Requirements
Carpi & Clay, Inc. Page 11
8-15
EXHIBIT A
SCOPE OF SERVICES
Carpi & Clay, Inc. Page A-1 8-16
Project Approach & Methodology
The following charts detail two strategic work plans—short and long-term—covering the
full scope of Services to be provided by Consultant. Built into both plans is the necessary
flexibility to accommodate changes in Washington as well as issues that may emerge at
the local level.
Carpi & Clay
Page 13
8-17
O. STRATEGY
Work with the City to develop a robust
legislative/regulatory agenda.
This task would involve a visit by the core Carpi & Clay team
to the City for an intensive strategic planning session. The
Carpi & Clay team would use this opportunity to discuss
I.
Task
project and regulatory priorities with City leadership, tour
projects, and meet with City officials as appropriate. Carpi &
Clay would present the City with its assessments of
opportunities and challenges in Washington and the new
legislative climate and political dynamics, direction on
leveraging local resources to advance federal goals, and a plan
for coordinating grassroots, grasstops, and other public
relations resources.
Following this strategic planning session, Carpi & Clay will
prepare a memorandum identifying the City's top priorities
Deliverable
and a road map for achieving them. In addition, Carpi & Clay
will assist with issue fact sheets and justification materials for
identified priorities. City officials will use these materials
during meetings in Washington.
Ideally, this initial strategy session would take place soon after
engagement. The memorandum would be provided within two
Schedule
weeks of the strategic planning session. Issue fact sheets and
justification materials would be drafted in concert with City
staff and provided prior to any visit to Washington.
II.
Task
Advocate for Corps FY18 work plan project funding.
Deliverable
Immediate advocacy before district, division, and HQ levels of
the Corps, the ASA and OMB. Advocacy will include, but not be
Carpi & Clay
Page 13
8-17
Carpi & Clay
Page 14
W.
limited to, in-person meetings, calls, written correspondence,
and strategic outreach by key City officials.
Schedule
Immediate and continuing through the course of calendar year
2017 and into the first quarter of 2018.
III.
Task
Maintain regular communication and provide written
reports.
Organize conference calls with the appropriate level frequency
is key to advancing federal goals. We will work with the City
Deliverable
to establish this routine. Outside of these calls we will utilize
all available resources to communicate in a timely fashion and
on a regular basis as well as providing written quarterly
reports and an annual summary of federal efforts.
Schedule
Immediate.
IV.
Task
Plan a Washington trip for the City.
Working with the City, Carpi & Clay will prepare a list of
potential dates and targeted meetings in Washington to take
place this fall. Meetings will include the City's congressional
delegation, the White House, OMB, Council on Environmental
Quality, Corps HQ, ASA, Governor Brown's Washington office,
Deliverable
and outside groups as appropriate. Carpi & Clay will request
these meetings on behalf of the City and prepare the agendas.
Carpi & Clay will keep the City apprised of meetings as they
are secured. In addition, Carpi & Clay will assist in the
preparation of associated white papers, letters, talking points,
etc.
In order to influence the FY18 work plan dates for the City's
trip should be selected as soon as appropriate. Carpi & Clay
Schedule
will initiate formal meeting requests no later than four weeks
prior to the trip. Meeting materials should be drafted and
provided to the City prior to departing California for
Washington.
V.
Task
Advise on the Administration's Development of an
Infrastructure Proposal.
To date we have seen only high-level principles introduced,
but our team meets regularly with the D.C. infrastructure
Deliverables
community to help our clients to be in the best position for
any changes to existing programs and to be ready for any new
opportunities. To that end, we would advise the City on
strategic measures to be effective in these efforts.
Carpi & Clay
Page 14
W.
Schedule Immediate and ongoing
Carpi & Clay
Page 15
8-19
LONG-TERM STRATEGY
I.
Task
Advise the City on House and Senate legislative platforms
for the second session of the 115th Congress.
For the City to successfully execute its agenda, it is imperative
Deliverable
that it be aware of and responsive to the larger political
context. Carpi & Clay will advise the City through regular
communications as changes they develop.
Schedule
Carpi & Clay will advise the City of these dynamics throughout
the course of the contract.
II.
Task
Conduct extensive follow-up after the City's Washington
meetings.
Carpi & Clay will accompany the City to each of its
congressional, federal Agency and Executive Branch meetings
Deliverable
and take copious notes to ensure that the City responds to any
and all follow-up items, including thank -you letters, requests
for additional or more specific information, etc.
Follow-up items will be reviewed during a conference call
following a Washington visit. To decide the most appropriate
Schedule
form of response, action items will be distributed among the
City and Carpi & Clay team members for implementation over
the course of the week.
III.
Task
Present the City with competitive funding and grant
opportunities.
As new funding opportunities become available, Carpi & Clay
will review and alert the City to relevant opportunities.
Should the City elect to pursue these opportunities, Carpi &
Deliverable
Clay will support these efforts through an extensive
campaign -like response involving grant document review,
generating letters of support, and building a network of
advocates in Washington.
Notices of Funding Availability (NO FA) or Notices of Funding
Schedule
Opportunities (NOFO) are published throughout the year.
Carpi & Clay will track these opportunities in the Federal
Register and through conversations with agency officials.
Carpi & Clay
Page 15
8-19
IV.
Task
Prepare relevant appropriations requests for the FY19
budget process.
Taking into account relevant committee factors and political
Deliverable
pressure points, Carpi & Clay will develop bill and/or report
language For the FY19 appropriations bills.
Bill and report language will need to be developed and
Schedule
submitted prior to mid-February 2018. The schedule for such
projects will be dictated by Congress, but any such
opportunities will likely take place in the first quarter.
V.
Task
Assist with any delegation trips to Washington involving
City members or issues.
Carpi & Clay will support advocacy efforts of local groups such
as the U.S. Conference of Mayors, local chambers of
Deliverable
commerce, etc. that travel to Washington. We have a great
appreciation for leveraging your priorities through the voices
of your regional stakeholders.
Schedule
Late winter/early spring.
Vi.
Task
Provide real-time Washington updates.
Carpi & Clay has the resources and network to provide the
City with real-time developments on priority issues and
Deliverable
political developments. From tracking the Corps' regulatory
process to sharing behind -the -scenes, insider discussions, the
City will have full access to our insights.
Schedule
Ongoing.
Actively lobby the Congress, White House and federal
VII.
Task
department/ agency officials in support of City projects
and priorities.
As your extended office in Washington, we'll start our days
Deliverable
with your priorities on our front burner. Our definition of
full-service representation" is working on your behalf at
every opportunity.
Schedule
Ongoing.
VIII.
Task
Actively work with local government associations and
attend strategic organizations' meetings.
Deliverable
Recognizing that coalition efforts can help to drive success,
we will represent you within local government associations.
Carpi & Clay
Page 16
8-20
Carpi & Clay
Pave 17
8-21
Be it the U.S. Conference of Mayors, the National Association
of Counties, NAFSMA, or any other key organization, we will
leverage their political will and resources to advance your
policy and regulatory priorities. We will also tap into their
networking potential to build smaller coalitions of like-
minded agencies on issues that matter to you, but that may
not be at the forefront of the government association agendas.
Schedule
Ongoing.
IX.
Task
Monitor agency activity.
It is important to track the pulse of activity within key
agencies. Utilizing both public resources and internal
Deliverable
meetings, we are able to advance our clients' agendas and
learn of agency decisions and rule makings before they
happen.
Schedule
Ongoing.
X.
Task
Arrange for federal site visits to the City projects.
We will look to create educational opportunities for
congressional staff and agency officials by inviting them to
Deliverable
visit the City. Washington -based officials appreciate the
opportunity to see the projects they have been working on
firsthand. It also creates an opportunity for you to showcase
your accomplishments and build stronger relationships.
Informal requests will be made during the City's visit to
Schedule
Washington, and we will work with targeted officials to
identify times for a visit. Spring recess in April and August
recess are good opportunities for this type of event.
XI.
Task
Ensure that past federal Funding is obligated and resolve
any regulatory hurdles to projects already under way.
We recognize that once federal funding is secured, there can
be some administrative hurdles. We will work with you to
review all past federal funding to: 1) ensure that resources
have been used for their intended purpose; and 2) resolve any
Deliverable
administrative issues. This is not only important to advancing
priority projects, but to your ongoing messaging to your
congressional delegation. Federal resources are highly
competitive and congressional offices and agency officials are
more likely to assist those entities that have been good
stewards of federal funds.
Carpi & Clay
Pave 17
8-21
Carpi & Clay
Page 18
,3y
Schedule
Ongoing.
XIV.
Task
Advocate for City projects.
Carpi & Clay utilizes legislative tracking resources as well as a
"boots on the ground" approach to ensure that the City will be
the first to know when relevant legislation is introduced as
well as changes in the agency arena. We will also analyze
Deliverables
these bills/changes to provide the City with an assessment of
the potential benefits or impacts. As desired, we will work
with the City to develop an advocacy and communications
plan to educate agency officials and congressional
stakeholders.
Schedule
Ongoing.
XV.
Task
Reporting of unanticipated policy issues.
We recognize the importance of building in flexibility to any
Deliverables
federal strategy. As new issues emerge we will analyze the
opportunities and challenges and make recommendations to
the City.
Schedule
Ongoing.
Carpi & Clay
Page 18
,3y
EXHIBIT B
SCHEDULE OF BILLING RATES
Consultant shall bill City a monthly fixed fee of $4,700 per month. This monthly fee
includes all overhead costs and up to one trip per year to the City by the Project Manager.
Carpi & Clay, Inc. Page B-1 8.23
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
Carpi & Clay, Inc. Page C-1 8.24
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Carpi & Clay, Inc. Page C-2 8-25
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
G. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
Carpi & Clay, Inc. Page C-3 8-26
judgment may be necessary for its proper protection and prosecution of the
Work.
Carpi & Clay, Inc. Page C-4 8.27
ATTACHMENT B
City of Newport Beach
BUDGET AMENDMENT
2017-18
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- 18BA-026
AMOUNT:j $141,000.00
This budget amendment is requested to provide for the following:
To transfer expenditure appropriations from the General Plan Update CIP to the operating budget to provide for a professional
services agreement for federal advocacy services related to harbor dredging efforts and programs.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Object Description
REVENUE ESTIMATES
Orq Object Description
EXPENDITURE APPROPRIATIONS
Amount
Debit Credit
Description
Org/Object 01201928-980000-18M12 General Fund CIP - General Plan Update $141,000.00
Org/Object 01080005-811008 Public Works Admin - Professional Services
Org/Object
Org/Object
%VOK �t
Signed:
Financial Approval: Finance Director
Signed
Admin 've Approval: City Man
Automatic System
$141,000.00
2jai14
Date
Date
Signed:
City Council Approval: City Clerk Date 8-28
Increase in Budgetary Fund Balance
X
Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
ONE-TIME?
F-il
Yes
No
This budget amendment is requested to provide for the following:
To transfer expenditure appropriations from the General Plan Update CIP to the operating budget to provide for a professional
services agreement for federal advocacy services related to harbor dredging efforts and programs.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Object Description
REVENUE ESTIMATES
Orq Object Description
EXPENDITURE APPROPRIATIONS
Amount
Debit Credit
Description
Org/Object 01201928-980000-18M12 General Fund CIP - General Plan Update $141,000.00
Org/Object 01080005-811008 Public Works Admin - Professional Services
Org/Object
Org/Object
%VOK �t
Signed:
Financial Approval: Finance Director
Signed
Admin 've Approval: City Man
Automatic System
$141,000.00
2jai14
Date
Date
Signed:
City Council Approval: City Clerk Date 8-28