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HomeMy WebLinkAbout21 - BA-058 - Evaluating Residential Proejcts in Airport AreaCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 21 April 26, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Sharon Wood, Assistant City Manager 644 -3222, swood @city.newport - beach.ca.us SUBJECT: Professional Services Agreement with ROMA Design Group to Prepare Performance Criteria for Evaluating Residential Development Projects in the Airport Area, and Budget Amendment Transferring $88,960 from Unappropriated General Fund Reserve ISSUE: Should the City establish performance criteria to assist the Planning Commission and City Council in the review of applications for residential development in the Airport Area? RECOMMENDATIONS: 1. Approve the attached Professional Services Agreement with ROMA Design Group to prepare performance criteria, at a fee not to exceed $88,960; and 2. Approve a budget amendment transferring $88,960 from Unappropriated General Fund Reserve to Planning Account 2710 -8080 Services — Professional & Technical; and 3. Direct staff to seek reimbursement for project expenses from the Orange County Development Agency's redevelopment funds. DISCUSSION: Newport Beach has received its first application to allow residential development in the Airport Area (General Plan and Planned Community amendment requests by Brookfield Homes to allow 86 units at 1301 Quail Street), and staff has been contacted by developers who are exploring the possibility of residential development on other sites. Since residential development in the Airport Area has not been contemplated until the Professional Services Agreement with ROMA April 26, 2005 Page 2 recent work on the General Plan update, the City has no policies, standards or regulations against which to evaluate individual applications. Council Member Daigle has worked with staff and ROMA Design Group, an urban planning and design firm in San Francisco, on a scope of services to develop criteria that would assist the Commission and Council with evaluating these individual applications. ROMA's work could also be the basis for General Plan policies and future zoning provisions, if the result of the General Plan update is to provide for residential development in the Airport Area. ROMA proposes to accomplish the job through these tasks: • Research and stakeholder interviews to identify potential sites and types of residential development; • "Workout scenarios" on potential sites to determine the likely scale and configuration of development and the issues that need to be addressed in the performance criteria; • Draft performance criteria; and • Presentations to Planning Commission and City Council. ROMA anticipates the project will take 18 weeks, and the fee will not exceed $88,960. Council Policy F -14 requires that contracts for services over $30,000, or for services that were not included in the budget, be approved by the City Council. This policy also suggests that competitive bids should be obtained whenever possible. Issuing a request for proposals (RFP) might result in proposals with a different cost than ROMA's, but there is no requirement for professional services contracts to be awarded on the basis of cost versus responsiveness to the City's needs. An RFP process might also produce proposals with different ideas. However, this process would take approximately 60 days, and could result in the City not having performance criteria by the time the Brookfield Homes application is considered by the Commission and Council. Finally, ROMA has spent time with Council Member Daigle, staff and our General Plan consultant, and understands the issues the City needs to address. Funding Availability: This project was not included in the 2004 -05 budget. Council Member Daigle and staff have been discussing a number of amendments to the Memorandum of Agreement with the County of Orange regarding use of County redevelopment funds in the City of Newport Beach. The draft amendment now being discussed includes "land use planning and related studies within and nearby but benefiting the Project Area" as an additional purpose for redevelopment funds. This agreement is likely to be considered by the City Council and Board of Supervisors in May. Given the time sensitivity of the performance criteria project, staff is suggesting that the City Council approve a budget Professional Services Agreement with ROMA April 26, 2005 Page 3 amendment for City funding of the project until such time as redevelopment funds are available to reimburse the City. Sufficient funds are available in the Unappropriated General Fund Reserve. Environmental Review: The initiation of a planning study is not a project that requires environmental review. This review will be done at the time the Planning Commission and City Council consider proposed performance criteria. Submitted by: aron Wood Assistant City Manager Attachments: 1. Professional Services Agreement 2. Budget Amendment PROFESSIONAL SERVICES AGREEMENT WITH ROMA Design Group THIS AGREEMENT is made and entered into as of this day of 2005 by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and ROMA Design Group, a California corporation whose address is 1527 Stockton Street, San Francisco, California, 94133 ( "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 desires to engage Consultant to develop performance criteria for residential development in the Airport Business Area ( "Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal members of Consultant for purposes of Project shall beJim Adams and Boris Dramov. E. 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 27th day of April, 2005, and shall terminate on the 31st day of December, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached 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 the 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. 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 "A, Fee Proposal" and incorporated herein by reference. In no event shall Consultant's compensation exceed Eighty -eight Thousand, Nine Hundred Sixty Dollars ($88,960) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 3.1 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. 3.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. 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. 3.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates 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 Jim Adams 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 City Manager's Office. Sharon Wood 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. 3 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work performed or Ell services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the 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. b7 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 work, 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. 1. 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) days 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. 9 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than two 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. 3. 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. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. R. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 7 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) days written notice has been received by City. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. H. 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 written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further f compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon 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 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 the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against 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. M 21. 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 to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records 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 under this Agreement. 22. WITHHOLDINGS City may withhold payment 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 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. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. 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 10 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 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. 26. 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: Sharon Wood Assistant City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3222 Fax 644 -3020 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Jim Adams ROMA Design Group 1527 Stockton Street ( 415) 616 -9900 FAX 788 -8728 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 11 steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, 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 and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. 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, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. 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. 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. 12 32. 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. 33. 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. 34. 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. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Robin Clauson, Assistant City Attorney for the City of Newport Beach ATTEST: in LaVonne Harkless CITY Clerk CITY OF NEWPORT BEACH A Municipal Corporation A , Mayor for the City of Newport Beach CONSULTANT By: Attachment: Exhibit A — Scope of Services 13 Exhibit A ROMA April 18, 2005 Ms. Leslie Daigle, Council Member Mr. Homer Bludau, City Manager Ms. Sharon Wood, Assistant City Manager City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Subject: City of Newport Beach Airport Business Area, Performance Criteria Proposal for Services (Revised) Dear Ms. Daigle, Mr. Bludau and Ms. Wood: ROMA Design Group is pleased to respond to your request for a proposal to prepare performance criteria for new residential development in the City's Airport Business Area. The relative strength of the housing market is an issue that confronts many California cities and that poses particular challenges in protecting viable non - residential uses. avoiding conflicts between new residential and existing commercial uses, and insuring that new residents enjoy a quality of life comparable to that provided by traditional neighborhoods. We have recently undertaken similar studies in Santa Monica, Salinas and San Ramon. In our telephone conferences on March 23rd and April 15th, we understood that the City has two needs: (1) criteria to guide the Planning Commission's evaluation of applications for General Plan amendments for individual projects, and (2) criteria to be incorporated into the Zoning Ordinance following adoption of a new General Plan in November 2006. After discussion, we determined that preparation of the Zoning Ordinance provisions should await completion of the new General Plan, when experience with the Planning Commission criteria will inform the permanent regulations, and once the ultimate laud use designation for the area is established. Thus, this proposal addresses the Planning Commission criteria only. We will be pleased to submit a proposal for preparation of the zoning amendment criteria at a later date. The performance criteria should be crafted to respond to the quantity, scale and location of residential development anticipated. In the first two tasks, we propose to document our understanding of a build -out scenario which will be helpful in addressing locational issues, the need for off -site services and amenities (if individual developments are too small to provide them on- site), and development standards that are appropriate to the anticipated building types. This analysis will build on data already completed for the General Plan Ronia Drs:gn Croup • i5z7 Srerkion Surer • San Fronrisro, Cal forni" 941, ;; TEL (4x.5.%i6 -9900 • FAX (410788-8728 ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 2 process, and we will coordinate with those consultants in the preparation of this work. The build -out scenario, and the analysis of individual opportunity sites, will help us to develop recommended performance criteria for use by the Planning Commission in evaluating applications for amendments. More specifically, we see the following sequence of tasks: Task I: Research and Stakeholder Interviews The City and /or the General Plan consultant will supply ROMA with base information, including the existing General Plan and Zoning Ordinance, base maps showing parcels and ownerships, aerial photos of existing development, etc. We will first meet with the General Plan consultants and City staff, as appropriate, to review in greater detail existing information, to identify all potential sites for residential development (including residential mixed use), and to identify the opportunity sites that will be the subject of "workouts ", as defined below. The emphasis will be on locational issues that may preclude or favor residential development, such as airport noise, incompatible uses or proximity to services and the potential of sites to provide amenities and to contribute to an overall sense of neighborhood in the area. It is anticipated that candidate sites will be limited to Koll Center, Brookfield Homes, World Premiere, Commerce Plaza and the Campus Tract or portions thereof and that they will be a representative sample of the range of types of residential (or residential mixed use) development anticipated. Also in this task, we will interview key stakeholders over the course of two days. Such stakeholders could include public officials and staff, property owners and prospective residential developers. We will combine the information gathered from the General Plan consultants, staff and stakeholders and summarize it in mapped and written form. We will review it with staff to identify issues that the performance criteria must address. Deliverable: Constraints and Opporlunilies Map and supporting n:emorandimt. Task 2: Workout Scenario Using the information gathered in Task I, we will prepare what we call a "workout scenario" or our best estimate of the way the Airport Business Area might develop. For the selected opportunity sites, we will prepare sketch development plans of each (at I " =50' ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 3 or I " =100') to determine the likely scale and configuration of development. The workout plans will be accompanied by takeoffs of unit counts, non - residential square footage (if any), as well as selected statistics on building intensity, height, etc. We will then apply the conclusions to all potential development sites (either graphically or numerically) for two purposes: (1) to confirm the General Plan's assumptions, and (2) to inform the development of locational criteria. We will review the workout plans and overall scenario with staff to identify additional issues that the performance criteria must address, such as circulation, linkages, open space, site layout, etc. All work will coordinated with the City's General Plan consultant to ensure consistency and information exchange. Deliverable: li'orkow Plans and Scenario, with .supporring text (camera -ready and electronic version). Task 3: Administrative Draft Performance Criteria ROMA will draft performance criteria in text and graphic form. Graphics and diagrams will be in preliminary sketch form for review purposes. if appropriate, we will include photographs of built projects to illustrate likely building types as well as desirable characteristics. Staff will review and comment on the administrative draft, and will prepare a single set of coordinated comments. Deliverable: Up ro.Tve copies phis electronic form (1,Vord or PDF). Task 4: Final Draft Performance Criteria Based on staff comments, ROMA will revise the text and finalize the graphics. Deliverable: Up ro l0 copies phis elecrronic.form (IVord or PDF). Task 5: Presentations ROMA will prepare one PowerPoint presentation summarizing the final draft performance criteria. We have budgeted for presentations on two separate days, which may be to the Planning Commission, City Council or both. Deliverable: PoiverPoinr in PDF, PowerPoint Show (PPS) or HTML format for posting on City's websire and /or printing by City. Ms. Leslie Daigle, Mr. City of Newport Beach April 18, 2005 Page 4 ROMA Homer Bludau and Ms. Sharon Wood Task 6: Finn! Performance Criteria Based on direction of the Planning Commission and City Council, we will revise the text and graphics once. Our proposal assumes that the revisions will be minor in nature and will not require additional research, analysis or illustrations. Deliverable: Final pei formance criteria in electronic dorm (Word or PD& Schedule Task 1: 2 weeks Task 2: 3 weeks Task 3: 3 weeks (plus estimated 2 weeks for staff review) Task 4: 2 weeks Task 5: As required for scheduling and packet distribution (assume 4 weeks) Task 6: 2 weeks following second meeting Total: 18 weeks from notice to proceed Staffing Walter Rask, Principal with ROMA Design Group, will be the day -to -day project manager. As head of planning for downtown San Diego, Mr. Rask had eight years of experience drafting and implementing development regulations. At ROMA, he has managed similar regulatory assignments for cities including Santa Monica, Salinas and San Ramon California. Jim Adams, Principal, will be the managing principal overseeing the production of the work. and Boris Dramov, President of ROMA Design Group, will act as the design principal, providing his expertise in the structure and content of the performance criteria. Other ROMA professional staff will be assigned to the production of specific task deliverables. Fee As broken down in the attached table, the fee for these services is estimated at $88,960, inclusive of all direct costs. ROMA will not exceed this amount, without written authorization from the City of Newport Beach. ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 5 We look forward to working with you on this important assignment. Sincerely, ROMA Design Group Jim Adams, AlA Managing Principal cc: Elwood C. Tescher, E1P Associates N m O ° N c � a a {i Q O1 O' O: O O O O O O itl T; 69; 69 69 69 69i 69 i 691 69 H9 � F rn sv sv sv sv sv sv sv! sv� sv; sv; sv Q sv sv sv sv � sv sv sv' sv'. sv' sv vl v 7 7 Fsv sv V v F G Y 00 T N � A Y o w' �o 0 0o rl ao rl o a 1» sv � V =: W 3 v; v v ' v• c o a 0 F v ! ;d to ro v to 3i ro Y' - v F N f1: �' �• � 0 N N: O City of Newport Beach NO. BA- 058 BUDGET AMENDMENT 2004 -05 AMOUNT: Sas,eso.00 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance 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 PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase expenditure appropriations from unappropriated General Fund Reserves for a professional services agreement to prepare performance criteria for evaluating residential development projects in the airport area. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 010 3605 General Fund - Fund Balance REVENUE ESTIMATES (3601) Fund /Division Account Description EXPENDITURE APPROPRIATIONS (3603) Signed: / CJz nancial Approval: Administrati erii'ces Director Signed: !ti •� Administrative Appr al: dify Manager Signed: City Council Approval: City Clerk Amount Debit Credit $88,960.00 ' Automatic Date o Db� Date Date Description Division Number 2710 Planning - Administration Account Number 8080 Services - Professional & Technical Division Number Account Number Division Number Account Number Division Number Account Number Signed: / CJz nancial Approval: Administrati erii'ces Director Signed: !ti •� Administrative Appr al: dify Manager Signed: City Council Approval: City Clerk Amount Debit Credit $88,960.00 ' Automatic Date o Db� Date Date "RECEIVED AFTER AGENDA PKWEO" -14 .-1 L/-,2 (a - PROFESSIONAL SERVICES AGREEMENT WITH ROMA Design Group THIS AGREEMENT is made and entered into as of this day of 2005 by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and ROMA Design Group, a California corporation, whose address is 1527 Stockton Street, San Francisco, California, 94133 ( "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 desires to engage Consultant to develop performance criteria for residential development in the Airport Business Area ( "Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal members of Consultant for purposes of Project shall be Jim Adams and Boris Dramov. E. 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 27th day of April, 2005, and shall terminate on the 31st day of December, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached 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 The Consultant acknowledges the importance to the City of the City's project schedule and agrees to put forth reasonable efforts in performing the services with due diligence under this Agreement in a manner consistent with that schedule, as provided in Exhibit "A" hereto. The City understands, however, that the Consultant's performance must be governed by sound professional practices. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit "B" and incorporated herein by reference. In no event shall Consultant's compensation exceed Eighty -Eight Thousand, Nine Hundred Sixty Dollars and No Cents ($88,960.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit 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. 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates 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 Jim Adams 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 City Manager's Office. Sharon Wood shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized 3 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 provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, 12 without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the 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 5 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 work, 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. 1. 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) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, 1.9 employees and volunteers for losses arising from work performed by Consultant for City. 2. 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. 3. 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. 4. 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) per claim. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, 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, and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, and volunteers. 7 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, 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) days written notice has been received by City. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. H. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership orjoint- venture. 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 written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon 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 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 the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its officers, representatives and employees against 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. 21. 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 to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records 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 under this Agreement. 22. WITHHOLDINGS City may withhold payment 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 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. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. 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 10 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 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. 26. 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: Sharon Wood Assistant City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3222 Fax (949) 644 -3020 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Jim Adams ROMA Design Group 1527 Stockton Street (415) 616 -9900 FAX (415) 788 -8728 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, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 11 Notwithstanding the above provision, 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 and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all applicable 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, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. 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. 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. 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. 12 33. 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. 34. 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. 35. 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: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: M CITY OF NEWPORT BEACH A Municipal Corporation Steven Bromberg, Mayor for the City of Newport Beach ROMA DESIGN GROUP A California Corporation 0 LaVonne Harkless Jim Adams, Principal CITY Clerk Attachment: Exhibit A - Scope of Services Exhibit B — Schedule of Billing Rates 13 04/26/05 TUE 15:08 FAX 415 788 8728 ROMA DESIGN Z002 Exhibit B ROMA HOURLY RATE SCHEDULE FOR PROFESSIONAL SERVICES 2005 Principal $160- 260.00 Project Manager $145 -170-00 Project Architect/Designcr $145 - 170.00 Urban Designer /Site Planner $90- 150.00 Architect $90- 150.00 Landscape Architect $90-150-00 CADD Operator /Technical Support $65- 115.00 Graphic Designer $65- 115.00 Word Processor /Support $65- 115.00 ANNUAL RATE ADJUSTMENTS: The above rates shall remain in effect for the calendar year indi- cated. Thereafter, the rates may be subject to annual adjustment. METHOD OF PAYMENT: Professional services arc billed mondily and payment is due 30 days following date of invoice. Invoices unpaid after 30 days arc subject to a service charge of one and one - half percent per month. ROMA reserves the right to suspend work on this project if payment is not received within 45 days from invoice date. REIMBURSABLE EXPENSE: Actual expenditures for the Project are reimbursable at cost plus ten percent for coordination and processing, and will be billed in addition to professional service fees. Examples of reimbursable expense are transportation and living expenses while traveling in connection with the Projcct, long distance telephone calls, reproduction costs, postage and photography. REIMBURSABLE CONSULTANTS; Professional service fees and reimbursable expense of autho- rized consultants on the Project will be billed at cost plus ten percent for coordination and processing. LIMITATION OF LIABILITY: In authorizing ROMA to proceed on wotk based upon the above professional rate schedule, the Owncr agrees to limit ROMA's liability to the Owner and all consu•uc- rion contractors and subcontractors (if any) on the Project due to ROMA's professional negligent acts, errors or omissions, such that the total aggregate liability of ROMA to all those named above shall not exceed $50,000 or the total fee for services rendered on this Project, whichever is greater. It is understood that the limitation of liability has no affect on the comprehensive liability insurance nom: does it apply to any third party claims again.sr ncc professional liability insurance.