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c�<,FORN'P City Council Staff Report
March 27, 2018
Agenda Item No. 12
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dave Kiff, City Manager - 949-644-3001,
dkiff _newportbeachca.gov
PREPARED BY: Dave Kiff, City Manager
TITLE: AB 2464 (Harper), Professional Services Agreement with Schmitz
and Associates, Budget Amendment
ABSTRACT -
This item is back on the Agenda following a discussion on March 20, 2018 between me
and Council Members Dixon and Peotter, along with contacts with Don Schmitz. That
discussion led to the recommended actions presented below.
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) Authorize the Mayor to send a letter to Assembly Member Matthew Harper in support
of AB 2464 or a similar Harper bill;
c) Authorize the City Manager to execute a Professional Services Agreement with
Schmitz and Associates, including work with Henschel Government Affairs, with a not -
to -exceed amount of $120,000;
d) Identify Council Member Dixon and Council Member Peotter as the contacts to work
with staff and Mr. Schmitz and Mr. Henschel on this issue as it progresses forward;
and
e) Approve Budget Amendment 18BA-032 in the amount of $120,000 from the General
Plan Update CIP, 01201928-980000-18M12, to the City Council Professional Services
budget, 01005005-811008.
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AB 2464, Port Master Plan Update and More
March 27, 2018
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FUNDING REQUIREMENTS:
The proposed Budget Amendment for FY 2017-18 would allow up to $120,000 to be spent
in this regard (generally set at $16,000 per month plus incidental and travel costs from
Schmitz and Henschel). Should the bill be passed into law, the City would have to
undertake a fairly extensive planning effort to develop a Port Master Plan. While this will
involve additional City expense, it likely will save an undetermined amount of money for
our residents and businesses (and possibly the City) should the Port Master Plan be
approved by the Coastal Commission.
DISCUSSION:
In recent years, Council members have discussed the concept of a "Port Master Plan" for
Newport Harbor, that would be akin to a Local Coastal Program (LCP) for the waters of
Newport Harbor. With an LCP, a local community's governing board steps into the shoes
of the California Coastal Commission in interpreting the Coastal Act, allowing local
residents to avoid following the Commission across the state at its monthly meetings to
secure a permit.
In effect, having a Port Master Plan would allow the City Council and City staff to process
environmental review and permits for modifications, removals, and installations of items
like sea walls, private and public docks, mooring cans, swim lines, and more — assuming
all of this occurred consistent with the California Coastal Act. Additionally, it would allow
the City Council to more effectively manage small dredging projects, especially around
private piers.
Starting with the Council's planning session on Monday, January 29th, 2018, and then at
the Council's evening meeting of Tuesday, February 13, 2018, the Council gave direction
to have legislation introduced that would create the Port Master Plan concept in state law.
Assembly Member Matthew Harper agreed to introduce the legislation, which is now
Assembly Bill 2464 (Harper, with CA Senator John Moorlach as co-author). AB 2464 as
introduced is Attachment A.
AB 2464 would essentially align Newport Beach's harbor with other significant harbors,
calling out our harbor as a harbor able to have its own Port Master Plan. If the bill become
law, the City would then have to develop and submit the Port Master Plan to the Coastal
Commission for review and approval, similar to the City's extensive Local Coastal
Program effort. It is likely that developing and submitting a Port Master Plan may take a
significant amount of time should AB 2464 became law.
Don Schmitz of Schmitz and Associates has been a long-term contractor to the City on
advocacy before the Coastal Commission and to Coastal staff. Mr. Schmitz has
partnered in the past with Sean Henschel of Henschel Government Affairs to
communicate with state legislators and the Governor's office.
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AB 2464, Port Master Plan Update and More
March 27, 2018
Page 3
As noted to you on March 13, 2018, a sole -sourced contract to Schmitz and Associates
(working with Henschel Government Affairs) is proposed. Mr. Schmitz has a significant
history of working with our city on past key Coastal issues, including Marina Park, Sunset
Ridge Park, our Local Coastal Program, and more. Therefore, a sole -sourced effort here
may be appropriate.
The billing rate collectively (for Schmitz and Henschel) is $16,000 per month, not including
other expenses (such as travel and incidentals). The contract envisions a not -to -exceed
amount of $120,000, including a payment of $32,000 upon execution. See Attachment
B for the proposed professional services agreement. A budget amendment would be
required to cover these costs (see Attachment C).
It is challenging to know if AB 2464 will be successful immediately or if this second year
of the Legislature's 2017-2018 session will be a discussion, education, and learning year
for us and the Legislature and Commission about this important local need. Either way,
we are appreciative of Assembly Member Harper's interest in sponsoring AB 2464 for the
City and the harbor.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find that 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 the adoption of
City Council Policy A-3 has no potential for resulting in physical change to the
environment, directly or indirectly.
NOTICING:
This agenda item was noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Text of AB 2464 (Harper, 2017)
Attachment B — Proposed Professional Services Agreement with Schmitz and Associates
Attachment C — Budget Amendment No. 18BA-032
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ASSEMBLY BILL
ATTACHMENT A
No. 2464
Introduced by Assembly Member Harper
(Coauthor: Senator Moorlach)
February 14, 2018
An act to amend Section 30700 of the Public Resources Code, relating to ports.
LEGISLATIVE COUNSEL'S DIGEST
AB 2464, as introduced, Harper. California Coastal Act of 1976: Port of Newport Beach.
The California Coastal Act of 1976 establishes the California Coastal Commission and prescribes
the membership, and functions, and duties of the commission with regard to the regulation and
protection of coastal resources. The act specifies that after a port master plan for the port of
Hueneme, Long Beach, Los Angeles, or San Diego Unified Port District located within the coastal
zone, as provided, is certified by the commission, the permit authority of the commission is
thereafter delegated to the appropriate port governing body, except as specified. Existing law
requires certain cities and counties to incorporate the master plan in its local coastal program.
This bill would additionally apply this port master plan provision to the Port of Newport Beach
located within the coastal zone, except as provided. By imposing duties on local officials, this
bill would impose a state -mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts
for certain costs mandated by the state. Statutory provisions establish procedures for making
that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill
contains costs mandated by the state, reimbursement for those costs shall be made pursuant to
the statutory provisions noted above.
DIGEST KEY
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES
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BILL TEXT
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
Section 30700 of the Public Resources Code is amended to read:
30700.
For purposes of this division, notwithstanding any other provisions of this division except as
specifically stated in this chapter, this chapter shall govern those portions of the Ports of
Hueneme, Long Beach, Los Angeles, Newport Beach, and San Diego Unified Port District located
within the coastal zone, but excluding any wetland, estuary, or existing recreation area
indicated in Part IV of the coastal plan.
SEC. 2.
If the Commission on State Mandates determines that this act contains costs mandated by the
state, reimbursement to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government
Code.
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ATTACHMENT B
PROFESSIONAL SERVICES AGREEMENT
WITH SCHMITZ & ASSOCIATES FOR
ADVOCACY FOR NEWPORT HARBOR PORT MASTER PLAN
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 27th day of March, 2018 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and SCHMITZ & ASSOCIATES, a California corporation ("Consultant"), whose address
is 28118 Agoura Road, Suite 103, Agoura Hills, California 91301, 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 advocate on City's behalf before the
California Coastal Commission and California State Legislature regarding
Assembly Bill ("AB") 2464 (Harper), which relates to establishing a Port Master
Plan for Newport Harbor ("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 July 31, 2018, 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 forfh 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 fixed fee basis in accordance
with the provisions of this Section and the Schedule of Billing Rates attached hereto as
Exhibit B and incorporated herein by reference. Consultant's compensation for all Work
performed in accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed One Hundred Twenty Thousand Dollars and
00/100 ($120,000.00), without prior written authorization from City. No billing rate
changes shall be made during the term of this Agreement without the prior written
approval of City.
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
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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 Donald W. Schmitz 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 Manager's Office. City Manager
or designee shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator shall represent City in all matters
pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with 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
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requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
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
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service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall 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.
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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: City Manager
City Manager's Office
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: Donald W. Schmitz
Schmitz & Associates
28118 Agoura Rd., Suite 103
Agoura Hills, CA 91301
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 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.
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]
Schmitz & Associates
Page 10
12-15
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: 22
By:
Aa . Harp
City Attorney
ATTEST:
Date.-
By:
ate:By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Dave Kiff
City Manager
CONSULTANT: Schmitz & Associates, a
California corporation
Date:
By:
Donald W. Schmitz
President and Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Schmitz & Associates
Page 11
12-16
EXHIBIT A
SCOPE OF SERVICES
Consultant shall advocate before California Coastal Commission staff and
members regarding AB 2464 (Harper), which relates to establishing a Port Master Plan
for Newport Harbor. Such advocacy services include, but are not limited to, meetings,
calls, and emails with staff and members.
Consultant shall advocate before members of the California State Legislature
regarding AB 2464 (Harper). Such advocacy services may be performed through Sean
Henschel of Henschel Government Affairs ("HGA") and shall include, but are not limited
to, meetings, calls, emails with Legislators and legislative staff, including committee staff,
as well as with the Governor's Office and the California Coastal Commission's legislative
advocate.
Consultant shall be responsible for filing on the City's behalf all forms required of
the City as a result of services performed by Consultant and HGA including, but not limited
to, registration forms, authorization statements, and periodic activity reports with the
Secretary of State, the FPPC, and any other regulatory body, provided the City responds
in a timely way to Consultant's requests for form approvals, information, signatures, and
other requested information.
Schmitz & Associates Page A-1
12-17
EXHIBIT B
SCHEDULE OF BILLING RATES
Upon execution of the Agreement, Consultant shall be paid Thirty-two Thousand
Dollars and 00/100 ($32,000.00). In addition, Consultant shall be paid the sum of Sixteen
Thousand Dollars and 00/100 ($16,000.00) monthly for the term of the Agreement.
Consultant shall be paid for reimbursable expenses during the term of the
Agreement, upon written approval of City's Project Administrator.
The total compensation to Consultant under the Agreement shall not exceed One
Hundred Twenty Thousand Dollars and 00/100 ($120,000.00).
Schmitz & Associates Page B-1 12-18
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 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.
Schmitz & Associates Page C-1 12-19
0
5
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.
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.
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.
Schmitz & Associates Page C-2
12-20
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
judgment may be necessary for its proper protection and prosecution of the
Work.
Schmitz & Associates Page C-3 12-21
City of Newport Beach
BUDGET AMENDMENT
2017-18
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
Increase Expenditure Appropriations AND
X Transfer Budget Appropriations
SOURCE:
X from existing budget appropriations
from additional estimated revenues
from unappropriated fund balance
EXPLANATION:
ATTACHMENT C
NO. BA- 18BA-032
AMOUNT:1 $120,000.00
This budget amendment is requested to provide for the following:
To transfer appropriations from the General Fund General Plan Update Project to the City Manager's operating budget to
provide advocacy services related to AB 2464.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Object
REVENUE ESTIMATES
Description
Amount
Debit Credit
Orq
Object
Increase in Budgetary Fund Balance
01099
691012
Decrease in Budgetary Fund Balance
X
No effect on Budgetary Fund Balance
ONE-TIME?
B
Yes
Org/Object 01201928
No
This budget amendment is requested to provide for the following:
To transfer appropriations from the General Fund General Plan Update Project to the City Manager's operating budget to
provide advocacy services related to AB 2464.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Object
REVENUE ESTIMATES
Description
Amount
Debit Credit
Orq
Object
Description
01099
691012
Gen Fund -Transfer In From Gen Fund CIP $120,000.00
EXPENDITURE APPROPRIATIONS
Description
Org/Object 01201928
980000
General Fund CIP - General Plan Update $120,000.00
18M 12 -Unassigned -012 -Unassigned
Org/Object 01299
991010
General Fund CIP - Transfer Out $120,000.00
Org/Object 01050005
811008
City Council - Professional Services $120,000.00
Org/Object
Signed:
Signed:
Signed:
Fihancial Approval: FinW_Director
AdministrAve Approval: City M ager
City Council Approval: City Clerk
Automatic
Date
Date
Date 12-22
Nelson, Jennifer
From: Oborny, Shirley
Sent: Wednesday, May 02, 2018 7:41 AM
To: Nelson, Jennifer; Muldoon, Kevin; Rieff, Kim; Finnigan, Tara
Subject: FW: AB 1196 Harper letter from Will O'Neill
Please see Dave Kiff's response below.
E
From: Kiff, Dave
Sent: Tuesday, May 01, 2018 8:34 PM
To: Oborny, Shirley <soborny@newportbeachca.gov>
Subject: Re: AB 1196 Harper letter from Will O'Neill
No. Bill is dead.
Sent from my Pad
On May 1, 2018, at 5:41 PM, Oborny, Shirley <sobornv@newportbeachca.gov> wrote:
Will there be a letter?
EM
From: Nelson, Jennifer
Sent: Monday, April 09, 2018 10:10 AM
To: Oborny, Shirley <sobornv@newportbeachca.gov>
Cc: Mulvey, Jennifer <JMulvey@newportbeachca.gov>; Rieff, Kim <KRieff@newportbeachca.gov>;
Finnigan, Tara <TFinnigan@newportbeachca.gov>
Subject: AB 1196 Harper letter from Will O'Neill
Hello Shirley,
I am doing Council meeting follow up and see we have not received this letter from your office. Can you
please give me the status on when that will be completed, and if it has been, can you please send us a
copy for the packet/LF?
For additional reference —This was Item 12 on the 3/27/18 meeting. Will must sign as Duffy had to
recuse and the bill was incorrect on the Staff Report and should be AB 1196 not 2464.
Thank you,
Jennifer Nelson
Assistant City Clerk
City of Newport Beach
100 Civic Center Drive, Newport Beach, CA 92660
949-644-3006
inelsonrd,,newportbeachca.gov
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