HomeMy WebLinkAbout09 - Utilities Department Organizational ReviewCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 9
May 9, 2006
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: Contract with OMTS for Organizational Review of the Utilities
Department, Budget Amendment
ISSUE:
Should the City enter into a contract with Ohlund Management & Technical Services
(OMTS) to do an organizational review of the Utilities Department?
RECOMMENDATION:
1. Authorize the City Manager to sign a professional services agreement with OMTS in
an amount not to exceed $60,000 (includes base contract of $56,430 with a 5%
contingency if authorized by the City Manager) to perform an organizational review
of the Utilities Department.
2. Adopt Budget Amendment #BA- in the amount of $60,000 (from water and
wastewater enterprise system reserves to Utilities' professional and technical
services account)
DISCUSSION:
From time to time, City staff believes that it is appropriate to have outside experts
review some of our functions to ensure that we are meeting our goal to serve the public
in the best manner possible. The Utilities Department, which includes water distribution,
water purchase, wastewater collection, electrical /streetlights, and oil and gas, has been
an independent department (rather than a division of the Public Works Department) for
several years now. As such, staff believes it is time to have someone from the outside
— with an expertise in utilities functions — review what we do in Utilities, how we do it,
and with what level of personnel.
Some of the more important issues that should be addressed in this review are:
Contract with OMTS
May 2, 2006
Page 2
• Do we have the appropriate certification required for key personnel?
• What is the quality of our monitoring and testing equipment (SCADA, et al)?
• How effective is our current water conservation program?
• Is the role of Utilities as a separate department appropriate?
We enter the review period with no preconceptions about its outcome. The Utilities staff
and I look forward to reading whatever conclusions the consultant arrives at given the
consultant's expected level of expertise in reviewing Utilities functions.
The proposed Organizational Review is based on the attached Request for
Qualifications (RFQ). Two firms responded to the RFQ. Of the two firms, I believe that
Ohlund Management & Technical Services (OMTS) is the most qualified to perform the
Scope of Work (shown in OMTS's proposal dated April 26, 2006. References for Ms.
Lisa Ohlund or OMTS were very strong. Ms. Ohlund and I have discussed a Scope of
Work, refined it slightly and arrived at a cost for the work -- $56,430.
Funding. Funding for this Review is available within the Utilities Department's reserves
assuming the Council approves a Budget Amendment transferring these funds to the
Department's professional and technical services account.
This Agenda Item. This agenda item asks the City Council to authorize the City
Manager to execute a Professional Services Agreement developed by the City
Attorney's Office and based on the attached proposal by OMTS. The contract would
authorize the expenditure of up to $60,000 ($56,430 including a 5% contingency for
additional work if so directed by City staff). The Assistant City Manager will oversee this
contract on behalf of the Utilities Department.
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 Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Submitted by:
Dave Kiff
Assistant City Manager
Attachments. RFQ
OMITS Proposal
Budget Amendment — BA #.
CITY OF NEWPORT BEACH
MEMORANDUM
TO:
Potential Respondents
FROM:
Dave Kiff, Assistant City Manager
DATE:
December 30, 2005
RE:
Utilities Organizational Review — Request for Qualifications (RFQ)
The City of Newport Beach seeks your response to provide your firm's qualifications to
conduct an Organizational Review of the City's Utilities Department. The Review will
examine the issues raised on the proposed Work Scope.
Respondents should provide their qualifications to:
Dave Kiff, Assistant City Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
by Friday, January 2l ^, 2006 at 5.00 p. m.
This RFQ attempts to ascertain various firms' experience with similar organizational
reviews. To receive favorable consideration for a contract to conduct the work,
respondents should show recent (the last five years) experience working with similar
Utilities functions (water and wastewater) in either municipalities or special districts in
California.
We do not portend to know how to best conduct this Review - therefore, respondents
should feel free to propose changes to the Work Scope in order to improve the Review's
outcome for the City.
The selected contractor must be able to agree to the terms within our standard
Professional Services Agreement. Information about the city and the Utilities
Department is also attached.
Attachments:
• Proposed Scope of Work
• Professional Services Agreement template
• City and Utilities Information (from FY 2005 -06 Resource Allocation Plan)
SCOPE OF WORK
ORGANIZATIONAL REVIEW
CITY OF NEWPORT BEACH'S UTILITIES DEPARTMENT
Project: The selected consultant shall conduct an organizational review of the
City of Newport Beach's Utilities Department (including its administrative, water,
and wastewater functions) that provides the following information to the City
Manager:
Today's Operations
Water
• Are we appropriately staffed for the function's mission?
• Are the position classifications correct?
• Is compensation appropriate for major classifications?
• Are we at a correct ratio of field to supervisory personnel?
• Do we have the right credentials /certification?
• Is the role of the lab appropriate and is the lab correctly administered?
• Do we have the right technology (SCADA, etc) managing the system?
• What management tools are we using effectively? What management tools
are we not using that we should be using?
• Have we taken advantage of cross - training to an appropriate extent?
• Is our in -staff continuing education /training program appropriate?
• How effective are our Water Conservation programs and functions?
• Is our meter reading function appropriate for today and in the future? What
meter - reading technologies or partnerships should we be examining?
Wastewater
• Are we appropriately staffed for the function's mission?
• Are the position classifications correct?
• Is compensation appropriate for major classifications?
• Are we at a correct ratio of field to supervisory personnel?
• Do we have the right credentials /certification?
• Do we have the right technology (SCADA, etc) managing the system?
• What management tools are we using effectively? What management tools
are we not using that we should be using?
• Is our in -staff continuing education /training program appropriate?
• Have we taken advantage of cross - training to an appropriate extent?
Administration
• Are we appropriately staffed for the function's mission?
• Are the position classifications correct?
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• Are we at a correct ratio of mid -level and executive administrative personnel
to field operations?
Future Operations
• What trends in water and wastewater operations /staffing /technology should
we expect in the future?
• What recommendations for change does the consultant believe should be
made or could be made in the short-term and long -term?
• Provide a list of recommended organization concepts and alternatives not
suggested.
• Evaluate the advantages and disadvantages of the distinct Utilities
Department versus a Utilities Division within the Public Works Department.
• Suggest opportunities for changing staffing levels (up or down), including
functional consolidations.
Report
The above information should be prepared and presented in a written report
format - a draft report and final report should be submitted, allowing a comment
time from the City after the draft report before the final report is prepared.
The City will be most interested in the section of the Final Report that makes up
the requested information within the Recommendations forthe Future section of
the Scope of Work.
E: L.M.
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ELECTORATE
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March 22. 2005
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TABLE OF MISCELLANEOUS STATISTICAL INFORMATION
FISCAL YEAR 2005 -2006
COUNCIL - MANAGER FORM OF GOVERNMENT
CITY WATER SERVICE CONNECTIONS
26.369
NUMBER OF FIRE STATIONS
8
RESIDENTIAL POPULATION (January 1, 2DD4
estimate;
NUMBER OF CITY LIBRARIES
4
Permanent
80,831
NUMBER OF PARKWAY TREES
29,000
Summer
100,000
TOURIST POPULATION 20,000 to 100,000 per day
RECREATIONAL ACREAGE
Acres
Ocean Water
14,894
AREA
Square Miles
Harbor Waters
1,598
Land
25.9
Parks
258
Bay
2.5
Beaches
237
Ocean
23.0
TOTAL
16,987
TOTAL SQUARE MILES
51.4
Acres
STREETS AND ALLEYS
M{Ie5
Land
16,584
Improved
321
Bay
1,600
Unimproved
2
Ocean
14,894
State Highway
10
TOTAL ACRES
33,078
333
WATER FRONTAGE
Miles
DWELLING UNITS
Upper Bay Frontage
13
January 1, 2004
41,851
Ocean
10
Occupancy factor per dwelling unit
1.93
Harbor
21
TOTAL WATER FRONTAGE
44
POPULATION DENSITY
ASSESSED VALUATION
Per Square Mile
3,119.68
TOTAL
S26,048.812,767
Per Acre
4.87
NEWPORT HARBOR
Boats
9,900
EMPLOYEES
Residential
1,230
Regular Full Time
796
Commercial Slips and Side Ties
2,330
Total (including Part Time)
1,251
Bay moorings
1,235
Newport Beach is one of Southern California's most scenic and dynamic communities. It surrounds Newport Bay,
welt known for its picturesque islands and one of the greatest natural recreational boat harbors in the world,
accommodating over 9,000 boats of all types docked within its 21 square mile harbor area. This bay area and the
23 miles of ocean beach offer outstanding fishing, swimming, surfing and aquatic sports activities. The City has a
permanent population of approximately 80,000. During the summer months, the population grows to over
100,000 with 20,000 to 100,000 tourists daily. There are fine residential areas, modern shopping facilities and a
quality school system. A major campus of the University of California is located immediately adjacent to the
City, and eight other colleges are within a 30 mite radius. Located 50 miles south of Los Angeles in Orange
County. Newport Beach offers one of the finest climates in the United States.
9
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UTILITIES DEPARTMENT
To provide quality, cost effective utility
services to the community of
Newport Beach
Annual Department Goals
Meet the current and future needs for infrastructure, services, and resources for citizens and
visitors•
• Provide the City a safe and reliable water supply
Operate and maintain the City's water, wastewater, oil and gas, and street lighting systems in an
efficient and innovative manner
• Provide outstanding customer service and education to the public, other departments, and
agencies
• Promote team spirit and pride through our actions and activities
Encourage continuous employee assessment and development programs
Facilitate the Flow of information by maintaining a records management system
Offilies Yard
Department Organization
The Utilities Department is responsible for providing water service, wastewater collection, oil and
gas production, electrical services, and street lights to the citizens of Newport Beach. Water is
delivered to the tap, wastewater is transported for treatment, and streets and beach parking lots are
made safer with lighting. The Utilities Department has four divisions: Electrical, Oil & Gas, Water,
and Wastewater.
as
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The Electrical Division staff of five field
personnel is responsible for the maintenance
and operation of electrical services at all City
facilities. These include park sites, community
buildings, water and sewer pump stations, oil
wells, emergency generators, and over 6000
street and parking lot lights. Staff responds to
over 2000 service requests each year.
The Oil & Gas Division provides contract administration
and oversight for a small oil tank farm consisting of
16 wells in West Newport Beach. The operation and
maintenance of the oil operation is out sourced. Natural
gas is a by- product of the oil production and is sold to
Hoag Hospital.
The Water Division which consists of four sections
(Water Maintenance and Repair, Water Meters,
Water Production, and Water Quality) delivers water
from both local and imported sources. A staff of 25
field personnel operates the pumps, reservoirs, and
pressure reducing stations, performs water quality
testing, provides meter reading services, responds to
customer service requests, and performs year -round
preventative maintenance on fire hydrants, shut -off
valves, and over 200 miles of transmission mains.
The Wastewater Division staff of
11 field personnel operate 20 pump
stations and maintain over 200 miles
of wastewater collection system that
transports the City's wastewater to the
County's trunk system for treatment at
the Huntington Beach plant.
87 ;
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88
UTILITIES DEPARTMENT (Continued)
Electrical
Staffing: 5, 0.5 FTE
$1.104,513
City Facilities Electrical Service
Recreational Field Lighting
Parking Lot Lighting
Street Lighting
Water
Staffing: 34, 7.25 FTE
$14,533,191
Water Production
Water Quality
Water Conservation
Meter Reading
Reclaimed Water
Customer Service & Education
Water Maintenance & Repair
Underground Service Locating
Oil & Gas
Staffing: 0
$474.738
Oil Production
Gas Production
Oil & Gas Remedialion
Wastewater
Staffing: 13, plus 1.75 FTE
S2,460,432
Sewer Main Cleaning
Manhole Maintenance
Pump Station Maintenance
Sewer LalerallCleanoul Replacement
Wastewater Electrical Oil & Gas
13% 6% 3%
Water
78%
During this past year, the Big Canyon Reservoir Cover
and Disinfection Project was completed. The
cover was installed on the reservoir to improve the
water quality and protect the City's drinking water source.
The area of the cover is approximately 23 acre feet.
U
0
Charges for Services
$
2002 -03
$
200304
$
2004 -05
$
2005 -06
Intergovernmental
$
Actual
$
Actual
S
Estimated
$
Proposed
Salaries and Benefits
$
4,312,510
$
4,643,204
$
4,867,761
$ .
5,232,786
Maintenance and Operations
$
10,551,483
$
12,500,459
$
12,822,669
$
13,287,438
Capital Outlays
$
102,889
$
61,876
$
80,996
$
52,650
CIP
$
6,570,686
$
5,939,082
$
14,237,216
$
6,763,766
Total Expenditures
$
21,537,567
$
23,144,621
$
32,008,640
$
25,336.640
Charges for Services
$
18,957,911
$
19,513,959
$
19,551,000
$
19,432,000
Intergovernmental
$
-
$
1,608,507
S
1,586,295
$
-
Use of Money & Property
$
976,195
$
145.244
$
550,000
$
472,538
Sales of Oil & Gas
$
903,622
$
1,040.881
$
835,000
$
905,000
Other Revenue
$
300,312
$
402,405
$
19,000
$
18,000
Transfer (To) From Reserves
$
399,527
$
433,625
$
9,467,345
$
4,509,102
Total Revenue
$
21,537,567
$
23,144,621
$
32,008,640
S
25,336,640
C r-
2
M
1Ohlund Management & Technical Services
30111 Branding Iron Road, San Juan Capistrano, CA 92675 Phone: 949- 661 -9395
April 26, 2006
Mr. Dave Kiff
Assistant City Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Subject: Proposal to Utilities Organizational Review
Dear Mr. Kiff:
Ohlund Management & Technical Services (OMTS) is pleased to submit this proposal to perform the
subject professional services. We have structured this letter proposal to generally reflect the format
outlined in the Scope of Work included in the Request for Qualifications.
Ohlund Management & Technical Services
A Sole Proprietorship
30111 Branding Iron Road
San Juan Capistrano, California 92675
(949) 661 -9395 (Telephone)
(949) 661 -9395 (Fax)
Email: omts @cox.net
Contact: Lisa A. Ohlund
OMTS was established in July 1995 by founding principal, Lisa Ohlund. The firm has occupied office
space in San Juan Capistrano, California since 1995. Ms. Ohlund is the firm's sole employee and
supports the firm's current workload.
Related Finn Experience
Information regarding our experience was submitted with the Request for Qualifications and is
appended to this proposal as an attachment.
Project Approach
The City desires to retain a consultant to conduct an organizational review of the Water, Wastewater
and Administrative divisions of the Utilities Department to answer a series of questions regarding:
Mr. Dave Kiff April 26, 2006
Proposal to Perform Organizational Review
1. Classifications /Compensation
2. Staffing Levels
3. Water Conservation Program Performance
4. Technology Levels
5. Division Performance
6. Future Issues
The following is a brief discussion of tasks that would be performed to examine the issues identified in
the Scope of Services. These tasks will be performed for each division (Water, Wastewater and
Administration).
Task 1: Classifications /Comoensation —The City desires the answer to the questions:
• Are the position classifications correct?
• Is the compensation appropriate for major classifications?
Underlying the ability for an organization to function efficiently is the need for employees to understand
the requirements and responsibilities of their jobs. The Classification Description (CD) forms the basis
of that understanding and forms the functional contract between the employer and the employee.
This task involves: 1) reviewing the CDs, 2) identifying the distinguishing characteristics of each class,
and 3) briefly meeting with the employees of each class (including supervisory/management) to review
this information and provide them with the opportunity to comment. These meetings are followed by a
meeting with the supervisors of each class to review the information presented and fact verification. This
information will be analyzed and recommendations developed.
For the compensation element of this task, we would meet with the City's Human Resources Director to
review the most recent compensation studies (from collective bargaining efforts). This information
would be reviewed and an analysis of the impacts of compensation issues presented.
In preparing salary structure /range comments, we willtake into account internal parity and structure
issues, external job demand and customary practices in the public sector. Similarly, shift schedule (if
appropriate) and standby policy recommendations will be examined in light of existing City practices,
and customary public sector practices.
Level of Effort.
Water: 55 hours
Wastewater: 25 hours
Administration: 15 hours
Total for Task 95 hours
J
Mr. Dave Kiff April 26, 2006
Proposal to Perform Organizational Review
Task 2: Staffing Levels — The City desires the answers to questions such as:
• Are we appropriately staffed for the function's mission?
• Are we at a correct ratio of field to supervisory personnel?
• Do we have the right credentials /certifications?
• Is our meter reading function appropriate for today?
• In the Administration Division, are we at a correct ratio of mid -level and executive administrative
personnel to field operations?
• Are there opportunities for changing staffing levels (up or down), including functional
consolidations?
After reviewing CDs (and taking into account information developed in Task 1) organizational charts,
cost accounting information and other inform ation/documents that may be provided, a series of
meetings will be held with supervisory personnel to assess the work tasks performed by each class
under their supervision. Using this information, a matrix table will be developed which will show the
hours and percentage of time spent by each classification on direct and indirect cost tasks, with
particular attention paid to time allocated to Paid Time Off and the impacts to staffing. The information
collected in this task will be analyzed, the questions listed above addressed and staffing needs and
personnel distribution for the Department will be compared with available manpower.
Recommendations, if appropriate, will be made.
Level of Effort:
Water: 25 hours
Wastewater: 12 hours
Administration: 7 hours
Total for Task 44 hours
Task 3: Water Conservation Program Performance — The City desires the answer to the question:
• Now effective are our Water Conservation programs and functions?
The effectiveness of this state mandated program is important to assess. As the City grows and
forecasts demands, an important segment of "new" water is realized through conservation efforts. This
proposal assumes that the City has performed limited quantification of the effectiveness of its
conservation efforts, but has some discrete information readily available (pre 1977 single and multi -
residential housing stock, 1977 -1984 stock, and post 1984 development). The primary effort that would
be undertaken would be to quantify water savings realized by both the City's active program and
plumbing code requirements using data obtained from published reports.
This effort was separated out from the Division Performance analysis as it is uniquely prescribed under
state law and coordinated with regional wholesale agencies. It is usually operated independent of water
operations by customer service representatives and /or public information personnel.
Mr. Dave Kiff
Proposal to Perform Organizational Review
Level of Effort:
Water: 40 hours
Total for Task 40 hours
Task 4: Technology Levels — The City desires the answers to the questions:
• Do we have the right technology ( SCADA, etc.) managing the system?
• What meter - reading technologies or partnerships should we be examining?
April 26, 2006
The goal of this task would be to review the electronic information and control systems used in the
Utilities Department and provide a practical discussion and recommendations. OMITS is not an
engineering firm and our review would not include making any representations or recommendations
regarding the adequacy or inadequacy of the City's current platforms and installations.
Using information developed from our best professional judgment and published reports, we would
discuss the functional requirements of a SCADA system, identify best practices and report staff
concerns. Similar review would be provided for remote monitoring equipment, information management
systems and other identified technology. We would also provide information on the direction similar -
sized agencies are moving in with regards to technological advances.
With regards to the meter - reading issues specifically, we would identify technologies that are being
used currently in the southern California area and interview 2 -3 selected agencies regarding their
experience with them. We will briefly survey surrounding agencies to see if there is interest in shared
meter reading programs. We will also identify emerging technologies in this area.
Level of Effort:
Water: 50 hours
Total for Task 50 hours
Task 5: Division Performance— The City desires to answer the following questions:
What management tools are we using effectively? What management tools are we not using
that we should be using?
Have we taken advantage of cross - training to an appropriate extent?
Is the role of the Lab appropriate and is the lab correctly administered?
4
Mr. Dave Kiff
Proposal to Perform Organizational Review
April 26, 2006
• Is our in -staff continuing education /training program appropriate?
• What recommendations for change does the consultant believe should be made or could be
made in the short -term and long -term?
• Provide a list of recommended organization concepts and alternatives not suggested.
The performance assessment is arguably the most important of the tasks identified. In addition to the
questions answered above, it provides the response to the question: Are we meeting our Departmental
Goals?
Initially, documentation including regulatory reports, internal planning and operations reports, budget
reports, safety information, training information, recordkeeping information and staffing information
(including that developed under other tasks) will be used to familiarize OMTS with the current level of
operations.
Using information derived from publications such as AWWA's Assessing the Future: Water Utility
Infrastructure Management, AWWA's Water Distribution Operator Handbook, Third Edition as well as
our own experience, we will develop a list of "best practices" as a standard against which the Divisions
will be evaluated. Work under this task will require field observations and extensive review of
operational logs, maintenance documentation and interviews with supervisor and field staff.
Additionally, each of the questions above will be addressed as a specific item through document review,
interviews with staff and our knowledge of operations in other water agencies.
Level of Effort:
Water: 80 hours
Wastewater: 40 hours
Administration: 20 hours
Total for Task 140 hours
Task 6: Future Issues — The City desires the answers to the questions:
Is our meter reading program appropriate for the future?
What trends in water and wastewater operations /staffing/technology should we expect in the
future?
Evaluate the advantages and disadvantages of the distinct Utilities Department versus a Utilities
Division within the Public Works Department.
Information to respond to these questions would be developed through familiarization gained from work
on previous tasks, published information and our professional judgment and presented as part of the
draft and final reports.
Mr. Dave Kiff
Proposal to Perform Organizational Review
Level of Effort:
Water: 5 hours
Wastewater: 5 hours
Administration: 1 hours
Total for Task 11 hours
April 26, 2006
Five bound copies of a Draft Report and one electronic version (in MSWord) will be provided to the City
for review. Upon receipt of comments, five bound copies of a Final Report and one electronic version
(in MSWord) will be provided to the City.
Level of Effort:
Water: 30 hours
Wastewater: 15 hours
Administration: 8 hours
Total for Task 53 hours
Task
Estimated Date of Completion
Notice to Proceed
May 10
Task 1: Classification /Com pensation
May 26
Task 2: Staffing Levels
June 16
Task 3: Water Conservation Performance
June 16
Task 4: Technology Review
July 3
Task 5: Division Performance
july 3
Task 6: Future Issues
July 3
Task 7: Draft Report
July 13
Provide Final Report*
Jul 24*
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Mr. Dave Kiff
Proposal to Perform Organizational Review
April 26, 2006
OMTS proposes to perform the work detailed in this proposal for a not-to-exceed cost of $56,340. The
hours and costs are shown below.
Hours
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Cost
Project Indirect
Manager Expenses Total
Task 1: Class ification/Com pe sation 12,350 12,350
Task 2: Staffing Levels 720 5,720
Task 3: Water Conservation 5,200 5,200
Task 4: Technology Review 6,500 6,500
Ta .. sk 5. Division Performance 18,200 18,200
Task 6: Future Issues 1,430
Task 7: Draft/Final Report 6,890 50 6,940
Irvine Ranch Water District
yNr.Pau|jnnen
156OO Sand Canyon Avenue
Irvine, CA 92618
(949) 453-5300
City ofLivermore
Mr. Darren Greenwood
Water Resources Department
101 N( Jack London Boulevard
Livermore, CA 94550
(925) 960-8100
7
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��
Irvine Ranch Water District
yNr.Pau|jnnen
156OO Sand Canyon Avenue
Irvine, CA 92618
(949) 453-5300
City ofLivermore
Mr. Darren Greenwood
Water Resources Department
101 N( Jack London Boulevard
Livermore, CA 94550
(925) 960-8100
7
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��
Mr. Dave Riff
Proposal to Perform Organizational Review
(Reference for City of Rialto Work)
Mr. Bradley Baxter
City Manager
City of Rio Vista
One Main Street
Rio Vista, CA 94571
(707) 374 -6451
Mr. Bill Ault
Mr. Bob Kellison
City of Fountain Valley
10200 Slater Avenue
Fountain Valley, CA 92708
(714) 5934601
Mike Markus
Orange County Water District
10500 Ellis Avenue
Fountain Valley, CA 92708
(714) 378 -3305
April 26, 2006
In preparing this proposal, I have given extensive thought to the level of work required to perform a
review that will answer the questions you posed in a thorough and professional manner. I realize that
this is an important project for you and in reviewing the level of effort and cost, I discounted my hourly
fee from $150 to $130 per hour.
I look forward to discussing this proposal and answering any questions you may have.
Sincerely,
4.AJ�4
Lisa Ohlund
Principal
Attachments — Attachment A — Experience
I
City of Newport Beach
BUDGET AMENDMENT
2005 -06
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
X Increase Expenditure Appropriations AND
Transfer Budget Appropriations
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from unappropriated fund balance
EXPLANATION:
NO. BA- 06BA -066
AMOUNT: $so,000.00
Increase in Budgetary Fund Balance
X Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
This budget amendment is requested to provide for the following:
To increase expenditure appropriations by $60,000 for a contract with Ohlund Mangement & Technical Services
(OMTS) to do an organizational review of the Utilities Department. Of this amount, $40,000 is recommended from the
Water Enterprise Reserves and $20,000 is recommended from the Wastewater Enterprise Reserve.
ACCOUNTING ENTRY:
BUDGETARYFUND BALANCE
Fund Account Description
500 3784 Water Fund - system reserve
530 3784 Wastewater Fund - system reserve
REVENUE ESTIMATES (3601)
Fund /Division Account Description
EXPENDITURE APPROPRIATIONS (3603)
Amount
Debit Credit
$40,000.00
$20,000.00
Description
Division
Number
5500 Utilities -Water
Account
Number
8080 Services, Professional & Technical
$40,000.00
Division
Number
5600 Utilities - Wastewater
Account
Number
8080 Services, Professional & Technical
$20,000.00
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Automatic System Entry .
Signed:
Financial
pproval: ces Director
Date
Signed:
/Administrative
?� '0.
c
v �
Administrative Approval City Manager
ate
Signed:
City Council Approval: City Clerk
Date
0 f CITY OF NEWPORT BEACH
0
•
MEMORANDUM
TO: Mayor Webb and Members of the City Council
FROM: Dave Kiff, Assistant City Manager
DATE: May 4, 2006
RE: Item #9 — Utilities Organizational Review
Attached is the proposed Professional Services Agreement with OMTS for the Utilities
Organizational Review.
Dave
City Hall • 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768
PROFESSIONAL SERVICES AGREEMENT WITH
OHLUND MANAGEMENT AND TECHNICAL SERVICES (OMTS)
THIS AGREEMENT is made and entered into as of this _ day of May, 2006, by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and
OHLUND MANAGEMENT AND TECHNICAL SERVICES (OMTS) a California
Corporation whose address is , California,
( "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 is planning to perform an Organizational Review of the water and
wastewater functions of the City's Utilities Department.
C. City desires to engage Consultant to provide management consulting services to
conduct the Organizational Review ( "Project ").
D. Consultant possesses the skill, experience, ability, background, certification and qP
knowledge to provide the services described in this Agreement.
E. The principal member of Consultant for purposes of Project, shall be Lisa
Ohlund.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 30"' day of September, 2006, 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 parry hereby
agrees to provide notice to the other parry 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 A and incorporated herein by reference.
Consultant's compensation for all work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not
exceed fifty -six thousand, three hundred forty dollars ($56,340.00) 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.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and /or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
. 4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
Professional Services Agreement— OMTS
May 2006 — Page 2
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit A.
4.4 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this
Agreement, no further payments shall be made until City has accepted the
final work under this Agreement.
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated LISA OHLUND 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.
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 0
Professional Services Agreement— OMTS
May 2006— Page 3
This Agreement will be administered by the City Manager's Office. Dave Kiff,
Assistant City Manager (or his designee) shall be the Project Administrator and
shall have the authority to act for City under this Agreement. The Project
Administrator or his /her authorized representative shall represent City in all
matters pertaining to the services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
• 8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
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
Professional Services Agreement— OMTS
May 2006 — Page 4
work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
•
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
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.
Professional Services Agreement — OMTS
May 2006— Page 5
0
0
Professional Services Agreement — OMTS
May 2006 — Page 6
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated .
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement •
of work. Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, 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's 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.
D. Coverage Requirements. •
Professional Services Agreement — OMTS
May 2006 — Page 7
i. Workers' Compensation Coverage. Consultant shall maintain
• Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
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.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
Professional Services Agreement — OMTS
May 2006 — Page 8
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City.
F. 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.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint-venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership orjoint- venture. 40
Professional Services Agreement— OMTS
May 2006— Page 9
16. SUBCONTRACTING
No Subcontractors. 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
CADD data delivered to City shall include the professional stamp of the engineer
or architect in charge of or responsible for the work. City agrees that Consultant
shall not be liable for claims, liabilities or losses arising out of, or connected with
(a) the modification or misuse by City, or anyone authorized by City, of CADD
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Consultant. By acceptance of CADD data, City agrees to indemnify
Consultant for damages and liability resulting from the modification or misuse of
such CADD data. All original drawings shall be submitted to City in the version
of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
0 provide AutoCAD file of City Title Sheets. All written documents shall be
Professional Services Agreement — OMTS
May 2006 —Page 10
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
0
0
•
Professional Services Agreement— OMTS
May 2006 — Page 11
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 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 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 on any withheld sums at the rate of return that City earned on its
Professional Services Agreement — OMTS
May 2006 — Page 12
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
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:
Attn: Dave Kiff
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949- 644 -3002
Fax: 949 - 644 -3020
Professional Services Agreement — OMTS
May 2006 — Page 13
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Lisa Ohlund
Ohlund Management & Technical Services (OMTS)
30111 Branding Iron Road
San Juan Capistrano, California 92675
Phone: 949 - 661 -9395
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.
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May 2006— Page 14
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
33. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
34. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
35. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
36. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
37. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
•
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May 2006 — Page 15
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
. the day and year first written above.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
City Attorney City Manager
for the City of Newport Beach for the City of Newport Beach
0
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ATTEST:
CONSULTANT:
By: By:
LaVonne Harkless, Lisa Ohlund
City Clerk
Attachments: Exhibit A — Scope of Services & Billing Rate
Professional Services Agreement — OMTS
May 2006— Page 16