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HomeMy WebLinkAbout10 - Balboa Yacht Basin ManagementCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 10 January 11, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Shannon Levin, Harbor Resources Supervisor 949 - 644 -3041, shannon @newportbeachca.gov SUBJECT: AWARD CONTRACT FOR BALBOA YACHT BASIN MANAGEMENT ISSUE The City has negotiated a service agreement for the management of the Balboa Yacht Basin marina to Basin Marine Inc. RECOMMENDATIONS 1. Approve and authorize the Mayor and City Clerk to execute a Professional Services Agreement with Basin Marine, Inc. for Balboa Yacht Basin management for three years, and; 2. Approve Budget Amendment No. 11BA- appropriating $35,165 from the unappropriated Tidelands Fund Bafance Account No. 230 -3605 to Harbor Resources Account No. 2371 -8080. DISCUSSION Background: The Balboa Yacht Basin (BYB) is a City -owned property located off Harbor Island Drive near the Galley Cafe. Until January 2010 BYB was managed by City staff at which point the marina manager participated in the Early Retirement Incentive Program. In February 2010 staff granted a six month interim management of the marina and garages to Basin Marine Inc., then in September the City Council awarded a contract extension for an additional six months expiring February 1, 2011. Balboa Yacht Basin Contract January 11, 2011 Page 2 Selection Process In August 2010 staff issued a Request for Proposals for the BYB management. With four proposals subsequently received, Harbor Resources staff composed a review team of four people, two members of the Harbor Resources staff and two from other City departments, to analyze the proposals. The two lowest scoring candidates were also the most costly proposals, and those were eliminated from the selection. The top two candidates were ranked closely and were the two lowest cost proposals. After review of the qualifications and ranking exercise, Basin Marine was selected to receive the award for the BYB Management. Basin Marine has over 70 years marine industry experience and is known throughout the marine community to have superior customer service and response. Basin Marine will offer 7 day a week, on -site service from the Basin Marine Shipyard located at the east end of the BYB. Basin Marine staff will be comprised of four people including the contract manager, maintenance coordinator and office assistant. The fourth position, assistant dock master, will be created to manage the day to day marina operations and conduct the vessel sewage pumpout station inspections previously performed by City staff. Electrical meter reading will be coordinated with Basin staff and billing will remain with the Revenue Division. Basin Marine will compose a tenant newsletter and improve the communication with tenants, the public and staff with increased accessibility and marine experience. In addition to the scope of services Basin Marine has agreed to additional tasks including: 1. Minor cosmetic repairs to the restrooms. 2. Replace the remaining filets in each of the slips 3. Bleach and clean the dock boxes 4. Bleach and clean finials. 5. Clean the concrete decking where needed. 6. Replace old cleats where needed. 7. Replace rub rails where needed. 8. Improve signage. The Marina Manager staff position did not include maintenance service and was $66,352/yr. The interim contract is $48,000 /yr. The cost of service for a three year term is $253,188 at $84,396/yr and will be expended from the Harbor Resources Professional Services account. Balboa Yacht Basin Contract January 11, 2011 Page 3 ENVIRONMENTAL REVIEW Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. PUBLIC NOTICE The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers an item). FUNDING AVAILABILITY With the approval of the recommended Budget Amendment in the amount of $35,165.00, sufficient funds are available in the following account: Account Description Account Number Amount Harbor Resources Professional 2371 -8080 $ 35,165.00 Services The Harbor Resources Division Professional and Technical Services account will be increased in the next budget preparation for the full annual amount. Prepared by: Shannon Levin Harbor Resources Supervisor Attachments: Vicinity Map Professional Service Agreement Submitted by: Badum s Director PROFESSIONAL SERVICES AGREEMENT WITH BASIN MARINE, INC. FOR BALBOA YACHT BASIN MANAGEMENT THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement") is made and entered into as of this day of ' 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City"), and BASIN MARINE, INC., a California corporation ( "Consultant"), whose address is 829 Harbor Island Drive, Newport Beach, CA 92660 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 on utilizing a marine facilities management company to provide marina management services for the Balboa Yacht Basin. C. City desires to engage Consultant to provide dock management services for the 172 slips, docks, restrooms, parking lots, grounds and trash enclosures of Balboa Yacht Basin located at 829 Harbor Island Drive, Newport Beach, California ( "Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be David L. New. 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: 1111 -ta tl The term of this Agreement shall commence on the above written date, and shall terminate on January 31, 2014 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 {"Work" or 'Services "). 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. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Eight -Two Thousand, One Hundred Ninety -Six Dollars and no /100 ($82,196.00) per year, for three years through January 31, 2014. The total compensation shall not exceed Two Hundred Forty-Six Thousand, Five Hundred Eighty-Eight Dollars and no /100 ($246,588.00), 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 in advance by City. Unless otherwise approved, such costs shall be Professional Services Agreement Page 2 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 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 during the Agreement term. Consultant has designated David L. New 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 This Agreement will be administered by the Public Works Department. Shannon Levin, as Harbor Resources Supervisor, or her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. Professional Services Agreement Page 3 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 Irfe 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. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, 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 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, Professional Services Agreement Page 4 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 breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, 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 sole 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. 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. Professional Services Agreement Page 5 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. C. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the Professional Services Agreement Page 6 State of Califomia, Section 3700 for all of the subconsultant'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 (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($7,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. 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 accident. IV. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes Professional Services Agreement Page 7 no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. 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 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. Professional Services Agreement Page 8 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. 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. 19. 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. 20. 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. Professional Services Agreement Page 9 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or 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. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be bome by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 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. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Professional Services Agreement Page 10 Attn: Shannon Levin Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3041 Fax: 949 - 723 -0589 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: David L. New Basin Marine, Inc. 829 Harbor Island Drive Newport Beach, CA 92660 Phone: 949 - 673 -0360 Fax: 949 - 673 -0625 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. 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, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 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. Professional Services Agreement Page 11 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply regulations and requirements of all governmental entities, or municipal, whether now in force or hereinafter enacted. by Consultant shall conform to applicable City, county, regulations and permit requirements and be subject Administrator and City. 29. WAIVER with all statutes, ordinances, including federal, state, county In addition, all Work prepared state and federal laws, rules, to approval of the Project 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. 30. 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. 31. 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. 32. 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. 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. Professional Services Agreement Page 12 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: OFFICE OF THE CITY ATTORNEY B : I.41{ Leonie Mulvihill Assistant City Attorney M1i`tlll ATTEST: By: Leilani I. Brown City Clerk Attachments: CITY OF NEWPORT BEACH, A California municipal corporation By: Michael F. Henn Mayor CONSULTANT: BASIN MARINE, INC., a California corporation David New President Derek New Treasurer Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Professional Services Agreement Page 13 September 15, 2010 City of Newport Beach Harbor Resources Office ,attention• Shannon ,,vin 829 Harbor Island Drive Newport Beach, CA 92660 SUBJECT: Proposal for Balboa Yacht Basin Management To Whom It May Concern: The attached proposal for the management of the Balboa Yacht Basin at 829 Harbor Island Drive, in Newport Beach, California is presented this date by Basin Marine, Inc. Basin Marine, Inc, is a third generation, family owned business that has been doing business in the Balboa Yacht Basin since I939. Being a full service boat yard located adjacent to the marina, we are afforded the ability to most effectively manage the marina and the needs of its tenants. This proposal provides a summary of our qualifications, marine experience, and our understanding of the scope of work to be done. The associated costs of fulfilling these requirements with proficiency, and in complete compliance with regulations are also included. The combination of having over 70 years experience in the marine industry, our proximity to the Balboa Yacht Basin, and our established rapport with both city officials and the tenants makes us the logical choice for the management of this facility. The proposed price is valid for a period of a minimum of three (3) years. The contract director and manager is David L. New, and will be managed from Basin Marine, Inc. located at 829 Harbor Island Drive, Newport Beach, CA 92660. Should you require any additional information or have any questions please contact me directly. Sincerely, INC. DArid L. New President The intent of this Scope of Work is to provide management of the Balboa Yacht Basin marina and City facilities at 829 Bayside Drive, Newport Beach. SCOPE OF SERVICES Furnish all labor, equipment, materials, and supervision to perform BYB Management as described herein including, but not limited to, the following: A. Oversee day to day marina operations and services including slip rental and rent collection. B. Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. C. Keep dock carts in order. D. Ensure trash bins and enclosures are clean, swept and free of any hazardous materials. E. Maintain proper disposal of hazardous waste and retain associated records and waste manifests. F. Inspect restrooms daily for cleanliness. Replace restroom supplies as needed. Does not include janitorial service. G. Provide excellent customer service to current tenants, slip renters; and general public. H. Maintain orderly records of marina and BYB property. I. Maintain wait list for slips and garages and accept applications and deposits. J. Coordinate maintenance activity with City and with contractors for repairs and maintenance. K. Prepare a line -item list (including estimated cost) of significant (greater than $1000) repair and maintenance items to be considered by the City in their annual budget review process. L. Manage BYB as a Clean Marina and have marina certified within time frame not to exceed 18 months (www.cleanmarinascalifomia.org). M. Cooperate with the City's Newport Bay Copper Reduction Program at the BYB. (information located at www.coastkeeper.ora) N. Maintain confidentiality of records including tenancy, disputes, and tenant information. O. Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants. P. Ensure that the marina rules and regulations are provided to each new tenant and adhered to during their tenancy. Q. Attempt to resolve all tenant versus tenant disputes and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, refer to City for final determination. R. Maintain accurate records and assist City in collections of debts. S. Maintain the security camera system and keep electronic files for a period of not less than three months and assist the Newport Beach Police Department in reviewing files regarding suspected crimes committed in the marina. T. Conduct monthly meter readings and coordinate billing with Revenue Division. U. Conduct routine inspections of the City's public pump out facilities according to California Regional Water Quality Control Board R8 -2003- 0017 and monthly inspections of privately owned, publicly available pump out facilities in Newport Harbor according to California Regional Water Quality Control Board Order R8- 2005 -011. V. Review marina operations annually with the City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement. W. Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City for further review and /or replacement. Loss of material adjacent to the bulkhead is a significant safety issue in this marina and should be carefully monitored. X. Review slip and garage renter files to ensure that the required insurance is up to date and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. Y. Prepare a quarterly newsletter to remind slip and garage renters of rules and regulations (especially those which during the last quarter were frequently violated) and to reinforce Clean Marina related issues. ORGANIZATION New Maintenance CoordiraYar David New Contract Director/ Dock To Be Determined Assistant Dock Master David New (Contract Director/Manager and Dock Master): - Over see all aspects of contract. Lisa Steele Office Assistant Derek New (Maintenance Coordinator): - Respond to any complaints pertaining to dock cleanliness, safety, compliance, etc. - Maintenance coordination with City and approved contractors. - Meter reading to be coordinated with Revenue Division. Lisa Steele (Office Assistant) Responsible for all record keeping. Maintain Files. Compliance/reporting to agencies. To Be Determined (Dock Master) - Responsible for day to day marina operations and services. - Report to above. 4:I:INo 16�� CITY OF NEWPORT BEACH Request for Propsal Balboa Yacht Basin Management Attachment D: Proposal Form December 7,-2010 Services Monthly Cost Dock Master/Manager $ 1,200.00 Maintenance Coordinator and Office Assistant $ 2,681.00 (Includes postage /office supplies etc.) Assistant Dock Master (40 Hrs./Week) $ 2,952.00 Total Monthly Cost: $ 6,833.00 Total Annual Cost $81,996.00 Routine inspections of City's public pump out facilities 200.00 Revised Annual Cost $829196.00 CITY OF NEWPORT BEACH REQUEST FOR PROPOSAL BALBOA YACHT BASIN MANAGEMENT (COST BREAKDOWN) Contract Director/Manager/Dock Master (Dave New): $1,200.00 /month • Oversee day to day marina operations and services including slip rental and rent collection. •. Manage BYB as a Clean Marina and have marina certified within time frame not to exceed 18 months if possible, and if budget for same exists. • Cooperate with the City's Newport Bay Copper Reduction Program at the BYB. • Maintain confidentiality of records including tenancy, disputes, and tenant information. MONTHLY COST: $ 600.00 • Prepare a quarterly newsletter to remind slip and garage renters of roles and regulations (especially those which during the last quarter were frequently violated) and to reinforce Clean Marina related issues. MONTHLY COST: $150.00 • Prepare a line item list (including estimated cost) of significant (greater than $1,000.00) repair and maintenance items to be considered by the City in their annual budget review process. MONTHLY COST: $ 300.00 • Attempt to resolve all tenant versus tenant disputes and advise City of the nature of the dispute and resolution. If the dispute is not resolvable, refer to City for final determination. MONTHLY COST: $ 150.00 TOTAL MONTLY COST: Dock Master/Manager $1,200:00 Maintenance Coordinator (Derek New): • Coordinate maintenance activity with City and with contractors for repairs and maintenance. MONTHLY COST: $ 335.00 • Maintain the security camera system and keep electronic files for a period of not less than three months and assist the Newport Beach Police Department in reviewing files regarding suspected crimes committed in the marina. MONTHLY COST: $170.00 • Conduct monthly meter readings and coordinate billing with Revenue Division. MONTHLY COST: $ 336.00 • Inspect all sidewalks around the bulkhead for settling on at least a semiannual basis and report any sidewalk settling over one half inch to the City for further review and/or replacement. Loss of material adjacent to the bulkhead is a significant safety issue in this marina and will be carefully monitored. MONTHLY COST: $ 330.00 • Ensure that the marina rules and regulations are provided to each new tenant and adhered to during their tenancy. • Ensure that the terms of the various slip and garage rental agreements are adhered to by the respective tenants. • Review marina operations annually with City's Code and Water Quality Enforcement staff and implement their recommendations regarding water quality maintenance and improvement. MONTHLY COST: $ 330.00 Office Assistant (Lisa Steele): • Maintain orderly records of marina and BYB property. MONTHLY COST: $ 510.00 • Maintain wait list for slips and garages and accept applications and deposits. • Maintain confidentiality of records including tenancy, disputes, and tenant information. MONTHLY COST: $ 330.00 • Maintain accurate records and assist City in collections of debts,. MONTHLY COST: $170.00 • Review slip and garage renter files to ensure that the required insurance is up to date, and that the renters provide annual evidence that the Coast Guard documented vessel or DMV registration is in the name of the slip renter. MONTHLY COST: $ 170.00 TOTAL MONTHLY COST: Maintenance Coordinator &Ofc. Assistant: $2,681.00 Assistant Dock Master (to be determined): $2952.00 • Conduct daily inspections of docks, garages, restrooms, parking lot, grounds and trash enclosures to maintain safety and cleanliness. MONTHLY COST: $ 738.00 • Keep dock carts in order. MONTHLY COST: $ 369.00 • Ensure trash bins and enclosures are clean, swept and free of any hazardous materials. • Maintain proper disposal of hazardous waste and retain associated records and waste manifests. MONTHLY COST: $ 738.00 • Inspect restrooms daily for cleanliness. Replace restroom supplies as needed. (Does not include janitorial services). MONTHLY COST: $ 369.00 • Provide excellent customer service to current tenants, slip renters, and general public. MONTHLY COST: $ 738.00 TOTAL MONTHLY COST: Assistant Dock Master: $ 2,952.00 (Addition to Proposal) Assistant Dock Master • Conduct routine inspections of the City's public pump out facilities according to California Regional Water Quality Control Board R8- 2003 -0017 and monthly inspections of privately owned, publicly available pump out facilities in Newport Harbor according to California Regional Water Quality Control Board Order R8- 2005 -011. MONTHLY COST: .$200.00 City of Newport Beach BUDGET AMENDMENT 2010 -11 FECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase expenditure appropriations from the Tidelands Fund unappropriated fur with Basin Marine Inc. to extend manaqement of the Balboa Yacht Basin marina for ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account - 230 3605 NO. BA- 11 BA -023 AMOUNT: $35,155.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance X 1 e No effect on Budgetary Fund Balance he cost of a contract Amount Description Debit Tidelands Fund - Fund Balance $35,165.00 REVENUE ESTIMATES (3601) Fund /Division Account �r Description EXPENDITURE APPROPRIATIONS (3603) Description Division Number 2371 Tidelands Account Number 8080 Services: Professional & Technical NOC Division* Number Account Number Division Number Account Number Division Number Account Number Signed: Financial Signed: Administrative Services Director Approval: City Manager Signed: City Council Approval: City Clerk Credit $35,165.00 Date Date Date