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HomeMy WebLinkAbout06 - Newport Coast Assessment District ReviewCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 6 July 27, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: Professional Services Agreement with Jennifer Branin for Newport Coast Assessment District Review ISSUE: Should the City of Newport Beach enter into a contract with Jennifer Branin of Branin Finance to finalize her examination of the formation of and expenditures from certain assessment districts in the Newport Coast as required by the City's Pre - Annexation Agreement (PAA) for the Newport Coast? RECOMMENDATION: Authorize the City Manager to execute an $18,000 Professional Services Agreement (PSA) with Ms. Jennifer Branin of Branin Finance to complete her review of Newport Coast assessment district financial data. DISCUSSION: Background: The City added the Newport Coast community to the remainder of Newport Beach in January 2002. As a part of our annexation effort, the City Council entered into a Pre - Annexation Agreement (PAA) with residents of the Newport Coast to accomplish certain goals in their community. One aspect of the PAA included an expert legal review - funded at City expense - of certain assessment districts in the Newport Coast. The operative section (Section 8) of the PAA reads as follows: 8. ANALYSIS OF ASSESSMENT DISTRICTS AND RECOVERY OF MONIES OWED. The City shall retain legal counsel experienced in municipal financing including the formation and administration of improvement and assessment districts. City shall instruct legal counsel to conduct a thorough examination or audit of the documents prepared in conjunction with all Assessment Districts and Improvement Districts in the Newport Coast and Newport Ridge. For the purposes of this Section, these districts shall collectively be referred to as "Assessment Districts" and shall Include, but not be limited to, County Assessment Districts #88 -1 and #92 -1. This examination shall be commenced within sixty (60) days after the PSA with Jennifer 6ranin July 27, 2004 Page 2 Effective Date and shall be concluded within (150) days of the Effective Date subject to an extension of the examination period by Committee. City shall not place any limitation on legal counsel's budget for the reasonable and necessary expenses to be incurred in the performance of a complete and thorough examination, and the attainment of a result, which Is satisfactory to the Committee. Legal counsel shall report findings to the Committee in writing within one hundred eighty (180) days after the Effective Date subject to an extension of time approved by the Committee. In the event that legal counsel determines that: (i) Modifications to any decision, document or practice could result in Assessment District debt relief for owners of fully improved and occupied single family residences, or (ii) Assessment District funds were not used in a legal manner; or (iii) Assessment District funds were not used in a manner that benefited those who were assessed in a manner proportionate to the assessment imposed; or (iv) The allocation of costs or expenses related to the Assessment District was inequitable or is based upon erroneous assumptions regarding use and /or benefit; then. ... the City shall use its best efforts, including initiation of litigation against any and all appropriate parties if determined appropriate by the City Council, to provide relief through a modification of the decision, documents, conditions and /or practice or to recover such funds. Furthermore, the City shall use its best efforts, including initiation of litigation against any and all appropriate parties, if determined appropriate by the City Council, to provide relief, as each new assessment district is proposed, or an existing assessment district is modified. Such relief may include, but is not limited to, a modification of the proposed assessment district formation or any decision, documents, conditions, and /or practice or, if appropriate, to recover funds. Assessment Districts. Legislative bodies created assessment districts long before Proposition 13 (most California assessment acts date back to the early 1900s), but the districts came into greater use in the 1980s and 1990s. Major landowners interested in developing their land for residential development often -- with a majority vote of approval by the landowner itself -- created a special financing district to pay for the streets, sewers, water lines, fire stations, streetlights, and curbs and gutters that would serve the homes. Following a majority landowner approval (a majority of ballots received from landowners approve the proposed work and assessments, weighted by financial obligation), and the formation of the district, the public agency then issues bonds secured by special assessments to fund the project's improvements. The special assessments are added as a line item to the property tax bill and collected by the County when property taxes are due. Taxpayers' rights organizations criticized assessment districts, arguing that the districts were an "end- around" Proposition 13. Yet the districts themselves were approved by a majority of the landowners (one entity, generally). Mello -Roos Districts. Following Proposition 13's passage in 1978, Mello -Roos districts (after their legislative authors, State Senator Henry Mello and Assemblyman Mike Roos, PSA with Jennifer Bran %n July 27, 2004 Page 3 and also known as community facilities districts, "CFDs ") have also often funded significant new development in California. Proposition 13 - in addition to limiting most property taxes to 1 % of the assessed value of property and any increase in assessed value of properties to 2% per year - also required 2 /3'd, voter approval of any new special tax, including increases above the 1% "basic levy." Mello -Roos districts were criticized just like assessment districts, but in this case the CFDs were approved by a 2 13rds vote of the landowners (one entity, generally). CFDs and similarly- styled assessment districts are common today in new communities like Aliso Viejo, Rancho Santa Margarita, Mission Viejo, and the Newport Coast. Newport Coast's Assessment Districts. When the Irvine Company developed the Newport Coast, it worked with the County to create two major assessment districts (ADs 88 -1 [Newport Coast] and 92 -1 [Newport Ridge]) that funded the construction of Newport Coast Drive, the widening of PCH, the fire station, and much more. To build Newport Coast Elementary School and improvements to CDM High School, the Newport-Mesa Unified School District (NMUSD) created an overlapping Mello -Roos district at about the same period of time (CFD #90 -1). Many residents of Newport Beach (including at the Castways and Harbor Cove) also paid into CFD 90 -1. Four other improvement districts (secured by ad valorem taxes approved when general obligation bonds were issued) overlap the Newport Coast and Ridge - these are two water ADs and two sewerage ADs formed and managed by the Irvine Ranch Water District (IRWD). Assessment districts and Mello -Roos districts are often not popular with the property owners who pay into them after purchasing a home. They can add 25% or more to an average homeowner's tax bill for up to 20 to 30 years after the home's purchase (see examples of property taxes paid by various properties below). But each hornebuyer clearly agrees to pay the assessments, special taxes or ad valorem taxes as a part of the buyer's purchase documents - and It's likely that the home itself would not have been built (or supported with infrastructure) without the revenue provided by the district. A Pre -Prop 13 Home Newer NB Home w /CFD 90 -1 Newer NC Home Westcllff Home AV = $118,000 Taxes Paid: 1% = $1.180.00 AD = None CFD = None Meas A = S7.67 total = $1,190.00 City gov't receives. $20 (16.9 %) Tax Rate = 1.01% Castaways Home AV = $893,740 Taxes Paid: 1 % = $8,937.00 AD = $3,512.00 CFD = $667.00 Meas A = $58.04 total = $13,100.00 City gov't receives. $1,528 (11.6 %) Tax Rate = 1.47% Pelican Hill Home AV = $2,126,779 Taxes Paid. 1% = $21,267.00 AD = $4,015.00 CFD = $667.00 Meas A = $137.00 total = $26,400.00 City gov't receives. $3,169 (12 %) Tax Rate = 1.24% PSA with Jennifer Branin July 27, 2004 Page 4 All that noted, several Newport Coast residents have attempted to better understand the complexities of their County ADs in particular by communicating directly with the County of Orange. Both the questions asked by the residents and the County's responses were detailed and extensive. But the residents remain concerned that some AD implementation issues deserve additional scrutiny - thus the request via the FAA for City assistance. The City Council agreed to help because it believed that the City has a duty to both understand the Newport Coast ADs better and to ensure that our residents in the Newport Coast are being assessed fairly for infrastructure that the City now owns and operates. Examples of the residents' concerns include: • Whether it was legal to take a free road (the NW portion of Newport Coast Drive), paid for in part by AD dollars, and convert it to a tollroad; • The County's management of appropriate construction funds within the ADs. • The County's use of developer fees funded by Newport Coast home purchases yet used to build facilities in Aliso Viejo; and • Whether or not all of the infrastructure projects funded by the ADs were clearly identified in the ADs' engineers reports, fully constructed, and built within budgeted amounts. In January 2003, the City retained Bill Mitchell (of Cummins and White, LLP) and Robert Messinger (of Burke Williams & Sorenson, LLP) to review several preliminary issues, including whether a statute of limitations had expired (it had not). The City has paid these individuals about $14,500 (S8,300 for BW &S and $6,200 for Cummins and White) over the last 18 months. At my direction, Mitchell and Messinger have held off on more detailed analyses until Jennifer Branin of Branin Finance (with whom we worked extensively in determining our S25 million settlement amount for the Newport Coast's water and sewer service with IRWD) finishes her finance - oriented report (as opposed to a legal issues report). I employed her under a roughly $29,000 Letter of Ag .,eement since December 2003. Since December 2003, Ms. Branin has met extensively with County staff, OC Fire Authority staff, NMUSD staff, and others to prepare a near -final report called, "Newport Coast Funding and Financing Summary." While she encountered significant problems getting all of the data she needed for the Summary from the County of Orange, they have been cooperative as of late. During this process, she has met with the Newport Coast Advisory Committee's Subcommittee on Finance about four times. Ms. Branin's current Agreement is about complete in terms of hours and dollars. Unfortunately, delays at the County caused her to spend significant time examining boxes in a warehouse, tracking down documents, meeting with people two and three times apiece, and slowly gathering the relevant data. As such, we need to allow her to expend more resources in this effort. This Agenda Item. The proposed PSA includes a Scope of Work as follows: PSA with >ennifer Branin July 27, 2003 Page 5 • Complete Research and Analysis of final round of County Documents; • Finalize the draft Report ( "Newport Coast Funding and Financing Summary"); • Participate in community and subcommittee meetings (likely to be three); • Participate in a future public, noticed Workshop with the County staff, • Address comments following the Workshop; and • Respond to any questions by the attorneys who will look at the Final Report. The Final Report will be a document available to the public. Committee Action: The Newport Coast Advisory Committee has worked with Ms. Branin extensively and respects her work. They have not, however, reviewed this contract except for my giving them a copy of the staff report. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M, Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Funding Availabilit . Available with the 0110 -8080 and 0130 -8080. Submitted by: r. Dave Kiff Assistant City Manager Attachment: Professional Services Agreement with Jennifer Branin of Branin Finance PROFESSIONAL SERVICES AGREEMENT WITH BRANIN FINANCE THIS AGREEMENT is made and entered into as of this _ day of July, 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "CITY "), and Branin Finance whose address is #9 Carnelian in Irvine, California 92614 ( "CONSULTANT "), and is made with reference to the following: RECITALS A. CITY is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of CITY. B. CITY seeks to determine fact -based information about assessment districts in the Newport Coast. C. CITY desires to engage Consultant to research and review facts and accounting information about certain assessment districts in the Newport Coast ("Project"). D. CONSULTANT possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of CONSULTANT for purposes of Project, shall be Ms. Jennifer Branin. F. CITY has solicited and received a proposal from CONSULTANT, has reviewed the previous experience and evaluated the expertise of CONSULTANT, and desires tc 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 _ day of July, 2004, and shall terminate on the _ day of July, 2005, 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. The CITY may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE: Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by CITY. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT: CITY shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed Eighteen thousand dollars ($18,000.00) without additional authorization from CITY. No billing rate changes shall be made during the term of this Agreement without the prior written approval of CITY. 4.1 Consultant shall submit invoices to CITY describing the work performed the preceding period. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. CITY shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by CITY staff. 4.2 CITY shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by CITY. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: 2 A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by CITY and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of CITY. As used herein, "Extra Work" means any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER: 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 dur ng the Agreement term. Consultant has designated Jennifer Branin 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 personne to the Project without the prior written consent of CITY. CITY's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of CITY, shall remove from the Project any of its personnel assigned to the performance of services upon written request of CITY. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION: This Agreement will be administered by the City Manager's Office. Dave Kiff shall be the Project Administrator and shall have the authority to act for CITY under this Agreement. The Project Administrator or his/her authorized representative shall represent CITY in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES: 3 In order to assist Consultant in the execution of its responsibilities under this Agreement, CITY agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at CITY. CITY will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through CITY's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with CITY's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE: 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by CITY, nor have any contractual relationship with CITY. 8.2 Consultant represents and warrants to CITY that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to CITY that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by CITY, contractors, or governmental agencies. 9. HOLD HARMLESS: No provision required. 10. INDEPENDENT CONTRACTOR: 4 It is understood that CITY retains Consultant on an independent contractor basis and Consultant is not an agent or employee of CITY. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of CITY. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give CITY the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of CITY with respect to the results of the services. 11. COOPERATION: Consultant agrees to work c!osely 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 anc review all matters relating to policy and Project direction with CITY's Project. Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with CITY goals and policies. 13. PROGRESS: Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE: No provision required. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS: Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of CITY. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty 5 percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING: The parties recognize that a substantial inducement to CITY for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of CITY. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of CITY. 17. OWNERSHIP OF DOCUMENTS: Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of CITY, and CITY shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to CITY upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by CITY or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at CITY's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by CITY or persons other than Consultant is waived against Consultant and CITY assumes full responsibility for such changes unless CITY has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES: No provision required. 19. CONFIDENTIALITY: All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless CITY authorizes in writing the release of information. 20. OPINION OF COST: Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of CITY. Since Consultant has no control over the cost of labor and material, or G over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to CITY. 21. INTELLECTUAL PROPERTY INDEMNITY: The Consultant shall defend and indemnify CITY, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, tradernark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS: Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to CITY, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of CITY to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS: CITY may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest cn any withheld sums at the rate of return that CITY earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS: In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to CITY" greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoratio,i expense shall be borne by Consultant. Nothing in this paragraph is intended to limit CITY's rights under any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS: 7 CITY reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST: The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act'), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by CITY. Consultant shall indemnify and hold harmless CITY for any and all claims for damages resulting from Consultants violation of this Section. 27, NOTICES: All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to CITY by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to CITY shall be addressed to CITY at: Dave Kiff, Assistant City Manager City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone — 949 - 644 -3002 Fax — 949- 644 -3020 E -mail — dkiff @city.newport- beach.ca.us All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Ms. Jennifer Branin Branin Finance #9 Carnelian Irvine, California 92614 Phone — 949- 653 -1466 Fax — 949 - 653 -1457 28. TERMINATION: I 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 .n default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, CITY shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, CITY shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to CITY all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS: Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable CITY, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and CITY. 30. WAIVER: A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES: In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 0 33. AMENDMENTS: This Agreement may be modified or amended only by a written document executed by both Consultant and CITY and approved as to form by the CITY Attorney. 34, SEVERABILITY: If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE: The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT: Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Robin Clauson, Assistant City Attorney for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH, A Municipal Corporation in Homer L. Bludau, City Manager for the City of Newport Beach CONSULTANT: LaVonne Harkless, Jennifer Branin City Clerk Branin Finance Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 10 Exhibit A Scope of Services 1. Complete Research and Analysis of final rounc of County Documents (71 hours) 2. Finalize Draft Report (20 hours) 3. Participate in meetings, inlcluding preparation and travel time (12 hours) 4. Participate in workshop /forum with the County of Orange (8 hours) 5. Address post- workshop comments (6 hours) 6. Respond to questions by legal counsel (6 hours) Total Amount of Hours = 123 Exhibit B Schedule of Billing Rates Jennifer Branin, Principal = $140 /hour 12 0 • Agenda Item No. 6 11AV 27, 2004 ,`...�T CITY OF NEWPORT BEACH � � ni Q MEMORANDUM TO: Mayor and Council Members FROM: Dave Kiff, Assistant City Manager DATE: July 23, 2004 RE: PSA for Agenda Item #6 Assistant City Attorney Robin Clauson and I have amended the proposed Professional Services Agreement with Branin Finance (Agenda Item #6 on the July 27 "' Agenda) to include a different insurance section. Please use the attached PSA as the PSA we have asked you to authorize Homer to execute. The pace, $18,000.00, has not changed. Thank you. City Hall • 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768 PROFESSIONAL SERVICES AGREEMENT' WITH BRANIN FINANCE THIS AGREEMENT is made and entered into as of this 23'd day of July, 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "CITY "), and Branin Finance whose address is #9 Carnelian in Irvine, California 92614 ( "CONSULTANT'), and is made with reference to the following: RECITALS A. CITY is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of CITY. B. CITY seeks to determine fact -based information about assessment districts in the Newport Coast. C. CITY desires to engage Consultant to research and review facts and accounting information about certain assessment districts in the Newport Coast ( "Project "). D. CONSULTANT possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. 0 E. The principal member of CONSULTANT for purposes of Project, shall be Ms. Jennifer Branin. F. CITY has solicited and received a proposal from CONSULTANT, has reviewed the previous experience and evaluated the expertise of CONSULTANT, and desires to retain CONSULTANT to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The term of this Agreement shall commence on the _ (Jay of July, 2004, and shall terminate on the _ day of July, 2005, 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. The • CITY may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE: Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by CITY. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT: CITY shall pay Consultant for the services on a time and expense not -lo- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed eighteen thousand dollars ($18,000.00) without additional authorization from CITY. No billing rate changes shall be made during the term of this Agreement without the prior written approval of CITY. 4.1 Consultant shall submit invoices to CITY describing the work performed the preceding period. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the dale the services were performed. the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. CITY shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by CITY staff. .7 4.2 CITY shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by CITY. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by CITY and awarded in accordance with this Agreement. E3. Approved reproduction charges. C. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of CITY. As used herein, "Extra Work" means any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 0 5. PROJECT MANAGER: Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to CITY at all reasonable times during the Agreement term. Consultant has designated Jennifer Branin to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit B or assign any new or replacement personnel to the Project without the prior written consent of CITY. CITY's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of CITY, shall remove from the Project any of its personnel assigned to the performance of services upon written request of CITY. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION: This Agreement will be administered by the City Manager's Office. Dave Kiff shall be the Project Administrator and shall have the authority to act for CITY • under this Agreement. The Project Administrator or his/her authorized representative shall represent CITY in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES: In order to assist Consultant in the execution of its responsibilities under this Agreement, CITY agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at CITY. CITY will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through CITY's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with CITY's reproduction company. All other r reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE: 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by CITY, nor have any contractual relationship with CITY. 8.2 Consultant represents and warrants to CITY that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice Its profession. Consultant further represents and warrants to CITY that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely information or to approve or disapprove Consultant's work . promptly, or delay or faulty performance by CITY, contractors, or governmental agencies. 4 9. HOLD HARMLESS: To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects (if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR: It is understood that CITY retains Consultant on an independent contractor basis and Consultant is not an agent or employee of CITY. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of CITY. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give CITY the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of CITY with respect to the results of the services. n LJ 5 11. COOPERATION: Consultant agrees to work closely and cooperate fully with CITY's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. CITY agrees to cooperate with the Consultant on the Project. 12. CITY POLICY: Consultant shall discuss and review all matters relating to policy and Project direction with CITY's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with CITY goals and policies. 13. PROGRESS: Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE: Without limiting Consultant's indemnification of CITY, and prior _to commencement of wQr_ Consultant shall obtain, provide and maintain at own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to CITY. A. Certificates _ of Insurance. Consultant shall provide certificates of insurance with original endorsements to CITY as evidence of the insurance coverage required herein. Insurance certificates must be approved by CITY's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with CITY at all times during the term of this Agreement. B, Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the CITY's Risk • Manager. 6 D. Coverage Requirements. 0 i. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. ii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned or rented vehicles, in an amount not less than three hundred thousand dollars ($300,000) combined single limit for each occurrence. iii. Automobile Liabilit Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than three hundred thousand ($ 300,000) combined single limit for each occurrence. E. Timely Notice of Claims. Consultant shall give CITY prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. F=. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS: Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of CITY. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty • 7 percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING: The parties recognize that a substantial inducement to CITY for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of CITY. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of CITY. 17. OWNERSHIP OF DOCUMENTS: Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of CITY, and CITY shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to CITY upon prior written request. • Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by CITY or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at CITY's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by CITY or persons other than Consultant is waived against Consultant and CITY assumes full responsibility for such changes unless CITY has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES: No provision required. 19. CONFIDENTIALITY: All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless CITY authorizes in writing the release of information. 20. OPINION OF COST: • Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of 91 CITY. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to CITY. 21. INTELLECTUAL PROPERTY INDEMNITY: The Consultant shall defend and indemnify CITY, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS: Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any seniices, 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. 23. WITHHOLDINGS: CITY may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that CITY earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS: In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to CITY greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or • 9 restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit CITY's rights under any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS: CITY reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST: The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act'), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by CITY. Consultant shall indemnify and hold harmless CITY for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES: All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to CITY by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to CITY shall be addressed to CITY at: Dave Kiff, Assistant City Manager City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone — 949 - 644 -3002 Fax — 949 - 644 -3020 E -mail — dkiff @city.newport- beach.ca.us All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Ms. Jennifer Branin • Branin Finance #9 Carnelian 10 Irvine, California 92614 Phone — 949 - 653 -1466 Fax — 949 - 653 -1457 28. TERMINATION: In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, CITY shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, CITY shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to CITY all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS: Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable CITY, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and CITY. 30. WAIVER: A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal • agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES: In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS: This Agreement may be modified or amended only by a written document executed by both Consultant and CITY and approved as to form by the CITY Attorney. 34. SEVERABILITY: If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE: The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT: Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPR V AS TO FORM: i Robin Clauson, Assistant City Attorney for the City of Newport Beach • 12 CITY OF NEWPORT BEACH, A Municipal Corporation By.— Homer L. Bludau, City Manager for the City of Newport Beach UlaMI5 CONSULTANT: 9 By: _ By:_ LaVonne Harkless, Jennifer Branin City Clerk Branin Finance Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 0 n U 13 • Exhibit A Scope of Services z . Complete Research and Analysis of final round of County Documents (71 hours) 2 . Finalize Draft Report (20 hours) 3. Participate in meetings, inlcluding preparation and travel time (12 hours) 4 . Participate in workshop /forum with the County of Orange (8 hours) 5 . Address post - workshop comments (6 hours) 6 . Respond to questions by legal counsel (6 hours) Total Amount of Hours = 123 14 Exhibit B Schedule of Billing Rates Jennifer Branin, Principal = $140 /hour 15 is i