HomeMy WebLinkAbout10 - Inter-Governmental Collaboration for Newport HarborCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 10
December 8, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Sharon Wood, Assistant City Manager
(949) 644 -3222, swood(a)newportbeachca.00v
Chris Miller, Harbor Resources Manager
(949) 644 -3043, cmillera- newoortbeachca.00v
SUBJECT: Professional Services Agreement with Larry Paul and Associates to
Assist Harbor Resources with Inter - Governmental Collaboration,
Project Development ! Implementation and Negotiating an Eelgrass
Management Plan for Newport Harbor with the Regulating Agencies
ISSUE:
Should the City authorize a Professional Services Agreement with Larry Paul and
Associates to assist Harbor Resources by providing consulting services for inter-
governmental collaboration, project development / implementation and negotiation of an
eelgrass management plan for Newport Harbor?
RECOMMENDATION:
1. Authorize the Mayor to execute a Professional Services Agreement with Larry
Paul and Associates to provide consulting services to Harbor Resources and to
assist in negotiating an eelgrass management plan, and;
2. Approve Budget Amendment #BA appropriating $24,500 from
unappropriated reserves (Tidelands) to #2731 -8080 (Professional and Technical
Services).
DISCUSSION:
For the past three years, the City of Newport Beach has entered into Professional
Services Agreements with Larry Paul and Associates to provide program and project
support to the Harbor Resources Division. During the past year, Larry Paul's work has
included multi -year project implementation strategies for Newport Harbor dredging,
assistance with other harbor management issues, and providing input for statewide
coastal issues. Specifically, Larry Paul has accomplished the following things:
Lower Bay Dredging Project: Helped refine the strategy for the project to
reflect the Corps' budget allocation for the initial stages of project design. Worked
with the Corps executive staff for resolution of contaminant disposal,
environmental issues, funding requirements, and phasing of the project. Worked
PSA with Larry Paul and Associates
December 8, 2009
Page 2
with Corps engineering staff for the design criteria and project scheduling issues.
Provided assistance for the presentation to the regulatory agencies for the
acceptance of the City's sediment testing work including contaminants in the
federal channel as well as the Rhine channel. Helped shape the evolving
confined aquatic disposal alternatives which now include the Port of Long Beach
disposal site. Drafted congressional funding requests, prepared talking points for
Washington D.C. congressional visit, prepared white paper for project
implementation strategies, and assisted in preparation of materials, reports, and
presentations made to the City Council. Scheduled and prepared agenda and
briefing notes for three Corps /City Council meetings. Worked closely with the
City's D.C. lobbyist for tracking the congressional process, provided updated
project information, coordinated responses for congressional staff inquiries and
arranged congressional staff site visits.
2. Upper Newport Bay Project: Coordinated with the County for the local sponsor
share of the increased project costs. Provided assistance and follow up for the
project limit issue known as the 902 Limit. Worked with Corps engineering and
design staff to help resolve modifications to project features. Assisted in the
development of the stimulus funded project request.
3. Harbor Resources Projects and Issues: Provided assessment for resolving
permit and regulatory compliance of harbor projects, regional general permits,
water quality issues, mooring issues, and in -bay sand replenishment issues.
Continued efforts to complete the groin field sand fill as part of the federal
Surfside Sunset project. Provided input for staff reports, Council presentations,
and Harbor Commission agendas. Drafted white papers for Marine Life
Protection Act beach manipulation initiative. Drafted talking points for League of
Coastal Cities issues presented to the Coastal Commission. Advised on
statewide coastal and harbor issue implications for the City. Participated in
conference calls involving the resolution of technical issues.
SCOPE OF WORK:
Larry Paul proposes to provide Harbor Resources and other City staff with assistance on
the following projects:
Lower Newport Bay Dredging
a. Coordinate maintenance dredging activities of the federal and non - federal
channels in the Lower Newport Bay.
b. Coordinate with the City's federal lobbyist for federal funding issues
associated with the Lower Newport Bay project.
c. Provide assistance for dredged disposal issues.
d. Provide strategy for Confined Aquatic Disposal sites.
2. Technical Advisory
a. Participate as a member of the Harbor Resources project team for
technical issues.
b. Assist in the development of a dredging plan for the Rhine Channel.
c. Assist in the implementation of the formal project cooperation agreements
with the U.S. Army Corps of Engineers.
d. Provide draft language for the annual Congressional funding requests.
PSA with Larry Pau! and Associates
December 8, 2009
Page
3. Completion of Upper Newport Bay Restoration
a. Continue to provide assistance for funding and construction issues for the
Upper Bay Restoration project.
4. Provide Strategy and Assistance for Priority Coastal and Harbor Related
Issues
a. Development of funding and implementation strategies for the Harbor
Area Management Plan to include items of interest to the Harbor
Commission.
b. Assist with negotiating a Newport Harbor eelgrass management plan with
the appropriate federal and state agencies.
TERMS OF THE AGREEMENT:
This Professional Services Agreement will commence immediately and expire on
November 30, 2010. Funding has been budgeted in FY 2009 -10, account 2371 -8080
for $50,000. However, a Budget Amendment is required for the remaining balance of
$24,500 which will cover Larry Paul's additional work in negotiating an eelgrass
management plan for Newport Harbor.
ENVIRONMENTAL REVIEW:
The City Council's approval of this item does not require environmental review.
PUBLIC NOTICE:
This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in
advance of the public meetings at which the City Council considers the item).
Submitted by:
Prepared by:
Sharon Wood — Chris Miller
Assistant City Manager Harbor Resources Manager
Attachments:
1. Professional Services Agreement
2. Budget Amendment
PROFESSIONAL SERVICES AGREEMENT WITH
LARRY PAUL/ LARRY PAUL AND ASSOCIATES
FOR
HARBOR RESOURCES SUPPORT SERVICES
THIS AGREEMENT is made and entered into as of this _ day of December 2009,
by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "),
and Larry Paul doing business as ( "DBA ") LARRY PAUL AND ASSOCIATES a sole
proprietor whose address is 2967 Michelson Drive G244, Irvine, California, 92612
( "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 dredge Lower Newport Bay, finalize the Harbor Area
Management Plan, and strategize dredge disposal issues and prioritize other
coastal and harbor related interests.
C. City desires to engage Consultant to provide inter - governmental collaboration,
project development, and project implementation services ( "Project ") for Harbor
Resources projects.
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal memberfs] of Consultant for purposes of Project shall be Larry
Paul.
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 November 2010, 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
Consultant shall perform the services in accordance with the schedule included
in Exhibit A. The failure by Consultant to strictly adhere to the schedule may
result in termination of this Agreement by City.
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 Seventy -Four Thousand Five Hundred Dollars and no /100 ($74,500)
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
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5.
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
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.
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.
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 LARRY PAUL 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.
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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 Harbor Resources Department.
CHRIS MILLER 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. 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.
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, 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,
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
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.
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 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.
n.
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:
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.
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
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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 Cfaims. 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 or joint- venture.
16. SUBCONTRACTING
City and Consultant agree that subconsultants may be used to complete the
work outlined in the Scope of Services. The subconsultants authorized by City to
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perform work an this Project are identified in Exhibit A. Consultant shall be fully
responsible to City for all acts and omissions of the subcontractor. Nothing in
this Agreement shall create any contractual relationship between City and
subcontractor nor shall it create any obligation on the part of City to pay or to see
to the payment of any monies due to any such subcontractor other than as
otherwise required by law. The City is an intended beneficiary of any work
performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and the City. Except as specifically authorized
herein, the services to be provided under this Agreement shall not be otherwise
assigned, transferred, contracted or subcontracted out without the prior written
approval of City.
17. OWNERSHIP OF DOCUMENTS
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
provide AutoCAD file of City Title Sheets. All written documents shall be
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transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
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
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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 the law or 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, 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: Chris Miller
Harbor Resources Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949- 644 -3043
Fax: 949- 723 -0589
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All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Larry Paul
Larry Paul And Associates
2967 Michelson Drive, G244
Irvine, Ca 92612
Phone: 949 - 439 -1455
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, 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 anytime 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.
12
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.
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,
OFFICE OF THE CITY ATTORNEY: A Municipal Corporation
13
0
David Hunt
City Attorney
ATTEST:
Paul and Associates
Leilani Brown,
City Clerk
L3
Ed Selich
Mayor
CONSULTANT: Larry Paul DBA Larry
(Corporate Officer)
Title:
Print Name:
Attachments: Exhibit A— Scope of Services
Exhibit B — Schedule of Billing Rates
14
Exhibit A-
Scope of Services
LARRY PAUL AND ASSOCIATES
%'ATERSHED & COASTAL PROJECT DEVELOPMENT
November 2, 2009
Mr. Chris Miller
Manager, Harbor Resources Department
City of Newport Beach
3300 Newport Blvd
Newport Beach, Ca 92663
Dear Chris,
I propose the following scope of work for the City of Newport Beach's Harbor Resources
Department. The work will be centered on consulting services for inter - governmental
collaboration, project development, project funding and implementation.
1. Coordinate maintenance dredging activities of the federal and non - federal
channels in the Lower Newport Bay.
2. Coordinate with the City's federal lobbyist for federal funding issues associated
with the Lower Newport Bay project.
3. Development of funding and implementation strategies for the Harbor
Management plan to include items of interest to the Harbor Commission.
4. Assist in the development of a dredging plan for the Rhine Channel.
5. Provide strategy and assistance for priority coastal and harbor related issues.
6. Provide assistance for dredged disposal issues.
7. Provide strategy for Confined Aquatic Disposal sites.
8. Participate as member of the Harbor Resources project team for technical issues.
9. Continue to provide assistance for funding and construction issues for the Upper
Bay Restoration project.
10. Assist in the implementation of the formal project cooperation agreements with
the U.S. Army Corps of Engineers.
11. Provide draft language for the annual Congressional funding requests.
12. Will provide assistance in negotiating a Newport Harbor eelgrass management
plan with the appropriate federal and state agencies. Work for this issue will
include an assessment of the best course of action and assist City with appropriate
strategies. Additionally, the work will include coordinating presentation materials
and meetings /conference calls with the resource and regulatory agencies to
include; NOAA fisheries, Department of Fish and Game, Corps of Engineers, and
Coastal Commission. Work in close coordination with city staff for planning,
legal, and management issues, and make recommendations for inclusion of city
hired technical experts when required. Provide monthly progress reports.
Larry Paul
949.439.1455
l a rrypa u l and as soc.com
2967 Michelson Drive 6244 Irvine, CA 02612
LARRY PAUL AND ASSOCIATES
WATERSHED & COASTAL PROJECT DEVELOPMENT
The total contract cost on a time and material basis will not exceed $74,500 for the
period from December 1, 2009 through November 30, 2010.
Sincerely,
Larry Paul
Larry Paul
949.439.1455
larrypaulandassoc . com
2967 Michelson Drive G244 Irvine, CA 92612
Exhibit B
LARRY PAUL AND ASSOCIATES
WATERSRED & COASTAL PROJECT DEVELOPMENT
November 2, 2009
Mr. Chris Miller
Manager, Harbor Resources Division
City of Newport Beach
3300 Newport Blvd
Newport Beach, Ca 92663
Dear Chris,
The following is my scheduled billing rate
Larry Paul - $ 168.00 per hour. I have organized the proposed work into the following
general task categories: Meetings and communications, with state and federal resource
and regulatory agencies -40 %, Project development and project policy issues for city
including position papers -30 %, project management, city meetings, and coordination-
20%, Consultations with city staff for Harbor Commission, Harbor Patrol, Moorings, and
state wide issues of importance -10 %.
Also, as a sole proprietor, I am insured for the general liability of $2 million
Sincerely,
Larry Paul
Larry Paul
949.439.1455
I a rryp a u Ian classoc.conn
2967 Michelson Drive G244 Irvine, CA 92612
City of Newport Beach NO. BA- 1UBA -022
BUDGET AMENDMENT
2009 -10 AMOUNT: $za,soo.00
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
�X Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
NX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase expenditure appropriations from unappropriated Tidelands fund balance for a professional services
agreement with Larry Paul and Associates to assist Harbor Resources with Inter - Governmental collaboration, Project
Devt & Implementation and Negotiating an Eelgrass Management Plan for Newport Harbor with the regulating agencies.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
230 3605
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Description
Tidelands Fund Balance
Description
Signed:
Signed:
Approval: Administrative
Approval:
Amount
Debit Credit
$24,500.00 '
' Automefic
$24,500.00
12 -1 -09
Date
12 -2 -0r)
Date
Signed:
City Council Approval: City Clerk Date
Description
Division
Number
2371 Harbor Resources - Tidelands
Account
Number
8080 Services, Professional & Technical
Division
Number
Account
Number
Division
Number
Account
Number
Signed:
Signed:
Approval: Administrative
Approval:
Amount
Debit Credit
$24,500.00 '
' Automefic
$24,500.00
12 -1 -09
Date
12 -2 -0r)
Date
Signed:
City Council Approval: City Clerk Date