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HomeMy WebLinkAbout04 - McFadden Plaza Centennial MonumentCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 4 August 14, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Emmet Berkery 714- 343 -3474 or embpe @aol.com SUBJECT: MCFADDEN PLAZA CENTENNIAL MONUMENT - APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH PERIDIAN INTERNATIONAL, INC. RECOMMENDATIONS: 1. Approve a Professional Services Agreement with Peridian International, Inc., of Newport Beach, CA, for the McFadden Plaza Centennial Monument project at a not to exceed price of $35,500 and authorize the Mayor and City Clerk to execute the Agreement. 2. Approve a budget amendment increasing revenue estimates in 0129 -5887 by $45,000.00 and increasing expenditure appropriations in 7251- C8002005 by $45,000.00 to cover the costs for design and preparation of an environmental document and application package for a Coastal Development Permit. DISCUSSION: On April 25, 2006, the City Council reviewed a concept plan from the Centennial Sponsorship Development Committee for a proposed project at McFadden Square which would commemorate the City's centennial. The concept plan was developed by Peridian International Inc. after several months of input, discussion, and review by City staff, the public, and the City Arts Commission. The concept plan has two phases. Phase One covers the area between the four benches near the entry to Newport Pier and the Dory Fishing Fleet. Phase One would replace the existing hardscape with granite pavers in the form of a labyrinth and includes a historical timeline, a granite band with donor names, a seat wall with plaques for major donors, and a sculptural element. The estimated cost is $491,000. McFadden Plaza Centennial Monument — Approval of Professional Services Agreement with Peridian International, Inc. August 14, 2007 Page 2 Phase Two expands farther out into the plaza area. Phase Two expands the concept with additional concrete rings and interlocking pavers farther out into the plaza area. Phase Two would also include palm trees, benches and tables at an estimated cost of $1.4 million. Fund raising efforts were initiated subsequent to the Council meeting and Peridian has commenced the preparation of design plans for Phase One. To date, over $250,000 has been raised. At this time, staff is proposing the approval of a Professional Services Agreement with Peridian International for the design of the Phase One improvements and the appropriation of a portion of the private donations received to date to cover the cost of Peridian's contract and the costs associated with the preparation of an environmental :document and processing of a Coastal Development Permit. Once sufficient funds are raised to construct Phase One, the remaining funds would be appropriated at the time a construction contract is awarded. The tentative construction start date is January or early February of 2008. Plans, specifications, and bid documents are nearing completion and staff expects to submit a Coastal Commission permit application this month. Environmental Review No review needed for design contract. Funding Availability: Upon approval of the recommended Budget Amendment, sufficient funds are available in the following account(s) for the project: Account Description Contributions Prepared by: 6%nt-� 1 Emmet Berkery. Project Coordinator Account Number Amount 7251- C8002005 $45,000.00 Submitted by: _ Attachment: Professional Services Agreement stepy.,ps. baaum Public Works Director PROFESSIONAL SERVICES AGREEMENT WITH PERIDIAN INTERNATIONAL, INC., FOR MCFADDEN PLAZA CENTENNIAL MONUMENT THIS AGREEMENT is made and entered into as of this day of 2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and PERIDIAN INTERNATIONAL, INC., a California Corporation; whose address is 28TH Street Marina, 2600 Newport Boulevard, Suite 130, Newport Beach, California, 92663 ( "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 install a McFadden Plaza Centennial Monument in McFadden Plaza. C. City desires to engage Consultant to review landscape standards and develop a conceptual landscape design for softscape and .hardscape, prepare landscape construction plans and construction details, and other related additional services described in Exhibit "A ". ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of Project, shall be Rae L. Price, FASLA, Principal. 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 31st day of July, 2009, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Thirty Five Thousand Dollars and no /100 ($35,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of .City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in. this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be 7 limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to • render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated RAE L. PRICE, FASLA, to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the.performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. EMMET BERKERY, P.E., shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES 3 In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one.. copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel - who are not employed by City, nor have any contractual relationship with City. 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. 8.4 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or be in charge of and shall not be responsible for the project's design, City's project contractor ( "Contractor "), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are 9 and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not . have control over or be responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors,. or their Agents. or employees, or of _ any other persons performing portions of the work. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers 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 the negligence, recklessness, or willful misconduct of the Consultant or 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, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. I 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 Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability 9 Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each .subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non- renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. .ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess 7 insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution. of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if .Consultant is a partnership or joint-venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 9 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared orL 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. All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings, and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 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 CARD 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. O 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 investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 10 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: Emmet Berkery, Project Manager Public Works Department City of Newport Beach 3300 Newport Boulevard Newport B_ each,.CA, 92663. Phone: 949- 981 -5260 Fax: 949 -644 -3308 11 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Rae L. Price, FASLA Peridian International, Inc. 28th Street Marina 2600 Newport Boulevard, Suite 130 Newport Beach, CA 92663 Phone: 949 -675 -2445 Fax: 949 - 675 -9992 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 any time by giving seven (7) calendar days prior written notice to Consultant. in the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City; county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by.either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 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. 13 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: Aaron C. Harp Assistant City Attorney ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Mayor for the City of Newport Beach PERIDIAN INTERNATIONAL, INC.: (Corporate Officer) Print Name: By: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates F: \Users \PBW \Shared\Agreements\FY 06- 07\Peridian- McFadden Plaza Centennial Monument,doc 14 I N T 8 It IN A T f 0 N A1,, ;NC', SCHEDULE A July 13, 2007 Mr. Lloyd R. Dalton, P.E. Public Works Department City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Reference: McFadden Plaza Centennial Monument Dear Mr. Dalton: Peridian International, Inc. is pleased to submit this proposal for landscape architectural services and fees for your McFadden Plaza Centennial Monument project located adjacent to the Newport Pier. PERIDUN INTERNATIONAL, INC., a California Corporation, (hereinafter "Peridian "), Landscape Architects & Land Planners, proposes to, render the following described services to CITY OF NEWPORT BEACH, (hereinafter "Client "). 1. CONSTRUCTION DOCUMENT PHASE 1. Demolition Plan — showing areas to be demolished and removal of existing site materials, i.e. concrete, pavers, etc. 2. Landscape Construction and Layout Plans - indicating locations, material reference, and dimensions of landscape construction elements such aslabrynth, plaza paving areas, and benches. 3. Landscape Construction Details - of landscape construction items such as labrynth, paving sections, bench structures and sculpture feature. 4. Construction Specifications— (City of Newport Beach format). 5. Estimate of probable landscape construction costs. 6. The specific Professional Services for Construction Document Phase shall consist of and be limited to the following: a. Preparation of site demolition and removal ® 1 " =8' -0" scale; 1 sheet. 2'ilh :?i f +•:'I J'ai.: rir 1, 2 1,0O !- aglvpnrt lilt:!.. ]6 ii:• ' i" Xl: k.nraUr pQn'Ii.r.w! pxridioll Il t •: l'd:•h °; .a: ,,. 1.....i?� [rdiad.:'ri i.a ndl"C.,1,:• ar::iii�i:cl dre Mr. Lloyd R. Dalton, P.E. Public Works Department City of Newport Beach July 13, 2007 Page 2 b. Preparation of Layout Construction Plan @ V= =8' -0" scale; l sheet. C. Preparation of Landscape Construction Details @ a variety of scales. (3 sheets maximum) d. Preparation of estimate of probable construction cost. e. Preparation of Construction Specificatiorns. f. Peridian anticipates attendance and /or participation in not more than 8 meetings and not more than 40 total hours of professional time. (2 persons) g. Construction support (RFI, shop drawing /catalog cut approvals, change orders preparation, etc.). h. Preparation of mylar as -built plans based on contractor's marked up plans of modifications and changes. 11. ADDITIONAL SERVICES These services are not included: 1. Providing services of outside professional consultants; such as civil and electrical engineers, architects, agronomists, surveyors, geologists or environmentalists, if required by City. 2. Providing services to verify accuracy of information or drawings provided by City. 3. Presenting or processing drawings through public or private agencies for the purpose of attempting to obtain approvals, permits, appeals, coastal commission approval, certification or any other processing approval requirements. 4. Providing services not otherwise included in this Agreement nor customarily furnished in accordance with generally accepted landscape architectural practice. 5. Making revisions to Drawings, Specifications or other documents when such revisions are inconsistent with written approvals or instructions or are due to causes beyond the control of Peridian. Mr. Lloyd R. Dalton, P.E. Public Works Department City of Newport Beach July 13, 2007 Page 3 6. Providing services made necessary by the default of the Contractor or by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Client or Contractor under the Contract for Construction. III. FEES Client shall compensate Peridian as follows: The fee for Construction Document Phase services shall be hourly not -to- exceed Thirty Six Thousand Five Hundred Dollars ($36,500.00). The fee will be billed monthly showing personnel, - hours worked and hourly rates, and shall be payable upon receipt by the Client. Landscape Architect (not -to- exceed) $ 35,000.00 Structural Engineer (not -to- exceed) 1.500.00 (if required) Total Estimated Fees $ 36,500.00 IV. SCHEDULE The anticipated date of completion of work to be performed under this agreement is Three IIundred Sixty -Five (365) days after authorization to proceed. V. REIMBURSABLE EXPENSES Reimbursable expenses are charged in addition to the compensation for professional services and any additional services, and include actual expenditures made by Peridian, its employees or its professional consultants in the interest of the project. Expenses will be billed at direct cost plus a 15% administrative fee: 1. Expense of reproduction of drawings and specifications. 2. Expense of delivery services, postage, mailing and special or express mailing. 3. Expense of professional renderings and /or scale models. Mr. Lloyd R Dalton, P.E. Public Works Department City of Newport Beach July 13, 2007 Page 4 This proposal specifically incorporates all terms and conditions in Peridiatls Standard Contract and the City Professional Services Agreement. If this proposal is acceptable Peridian will sign copies of the City Standard Contract and return them to the City. Very truly yours, PERIDIAN 1NTERN6WN —A I Rae L. Price, FASLA Principal EXHIBIT 63 SCHEDULES PERMIAN INTERNATIONAL, INC. FEE SCHEDULE Hourly Fees Principal $175.00 Associate 135.00 Landscape Architect 125.00 Designer 95.00 Designer I 85.00 Draftsperson 65.00 Intern 50.00 Clerical 50.00 City of Newport Beach NO. BA- 08BA -007 BUDGET AMENDMENT 2007 -08 FFECT ON BUDGETARY FUND BALANCE: X Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations X from additional estimated revenues from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: AMOUNT: 545,000.00 X Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase revenue and expenditure appropriations for McFadden Plaza Centennial Monument. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 250 3605 Contributions Fund - Fund Balance 010 3605 General Fund - Fund Balance REVENUE ESTIMATES (3601) Fund /Division Account Description 0129 5887 City Centennial - McFadden Square EXPENDITURE APPROPRIATIONS (3603) Description Division Number 7251 Contributions Fund Account Number C8002005 McFadden Centennial Monument Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: Financial Approval: Services Director oigned: //AAdpdministrative / �� ii , Affministrative Approvq City Manager Signed: City Council Approval: City Clerk Amount Debit Credit $45,000.00 $45,000.00 $45,000.00 $45,000.00 Date