Loading...
HomeMy WebLinkAbout18 - Back Bay View Park Replenishment & EnhancementCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 18 October 23, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Michael J. Sinacori, P.E. 949 - 644 -3342 or msinacod @city.newport- beach:ca.us .SUBJECT: BACK BAY VIEW PARK REPLENISHMENT AND ENHANCEMENT — APPROVAL OF LANDSCPE CONCEPT PLAN AND APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH SWA RECOMMENDATIONS: 1. Approve Replenishment and Enhancement Landscape Concept Plan. 2. Approve a Professional Services Agreement with SWA of Laguna Beach, California, for architectural landscape design services for a not to exceed price of $95,000 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: Since the construction of the Back Bay View Park in 2004 at the corner of Jamboree Road and East Coast Highway, the City has received numerous comments about the lack luster appearance. Many residents desire the park provide more useful and attractive elements. Working with Mayor Pro Tern Selich and Council Member Webb in early 2007, staff solicited proposals from three firms to provide a concept plan for physical enhancements at the Back Bay View Park. In May 2007, SWA was hired to provide a concept plan for these improvements. The concept plan was completed in late June (see attached). Since that time, staff has been working towards a contract with SWA for final design services to implement the proposed concept plan. Cost estimates for the construction project are approximately $1,000,000. The majority of the funding will need to be appropriated at a later date. SWA will provide design development, construction documents, and bidding assistance. for the Back Bay View Park Replenishment and Enhancement that includes the following components: • Finish grading and surface drainage of pedestrian pavements, boulders, and new planting areas Back Bay View Park Improvements —Approval of Professional Services Agreement with SWA October 23, 2007 Page 2 • Pedestrian improvements • Gazebo improvements, including architectural and structure design efforts, or similar type structure proposed in concept plan development • Permanent or temporary fence for rabbit protection of new plant material • Site furniture including benches and trash receptacles • Planting and soil amendment • Irrigation modifications Environmental Review: CEQA compliance will be developed upon completion of the contract documents. Funding Availability: There are sufficient funds available for the project design efforts in the following account: Account Description Back Bay View Park- - Replenishment and Enhancement Prepared by: A q Mi ael J. Sinacori, P.E. Assistant City Engineer Account Number Amount 7015- C3170933 $. 95,000 Total [ ..1_:i _A L... $ 95,000 Attachment: Back Bay View Park — Proposed Landscape Concept Plan Professional Services Agreement with SWA • • JAMBOREE ROAD Legend 1 Existing Baccharis pilularis 'Pigeon Point'/ Infill with plant of same variety 2 Plant Baccharis pilularis 'Pigeon Point' 3 Existing Salvia clevelandii to remain 4 New Salvia clevelandii 5 New Opuntia littoralis 6 New Baccharis 'Centennial' 7 Infill existing Baccharis pilularis 'Consanguinea'. Rhus integrifolia 8 Existing Salvia leucantha to remain 9 Existing Cistus corbariensis to remain 10 New Qucmus agrifolia / dumosa 11 New Salix spp. / Sambucus mexicam 12 Rhus integrifolia 13 Infill existing mesa with Baccharis pilularis 'Consanguinea' and Eriogonum fasciculatum 14 Coastal Meadow / Low Grass: Carex pansa Camx praegmcilis Nassella pulchra 15 Under -plant 10' wide strip on each side of walk with Baccharis pilularis 'Pigeon Point' and Iva hayesiana. artemisia califomica 'Canyon Grey' 16 Hydro seed with shrubs and groundcover Landscape Plan Back Bay View Park Newport Beach, Califomia Prepared for: City of Newport Beach Prepared by: SWA Group CNBN701 06.19.07 0 • 1, iii i;l1 1 J�. — - N Gazebo Imaee Board Back Bay View Park NmTwn Beach, California Pmpamd for. City of Newport Beach Pk pared by: S WA Gro p CNBN701.A 07.10.01 PROFESSIONAL SERVICES AGREEMENT WITH SWA GROUP, INC. FOR ARCHITECTURAL LANDSCAPING SERVICES FOR THE BACK BAY VIEW LANDING PARK THIS AGREEMENT is made and entered into as of this day of October 2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and SWA GROUP, INC., a California Corporation whose local address is 580 Broadway, Suite 520, Laguna Bea_ ch, California, ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing Under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to renovate Back Bay View-Landing Park in the City of Newport Beach, by adding pedestrian walkways, additional landscaping, a gazebo and park benches, among other things. In May 2007, City retained Consultant to provide a conceptual design for the proposed renovations. C. City now desires to engage Consultant to provide the architectural construction documents in connection with the proposed renovations at Back Bay View Landing Park (the "Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be David Berkson. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. " TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30 day of June, 2008, 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 (subject to the usual and customary standards of professional care) 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 Ninety Five Thousand and no /100 ($95,000.00) 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. 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance. by City. Unless otherwise approved, such costs shall be limited and include nothing. more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 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 Monica Simpson 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 for reasonable cause, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant represents 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 Michael J. Sinacori, 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 3 represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for Project. Consultant will be required to coordinate the required bid documents with City's reproduction company and obtain approval from City Administrator for all reproduction services to be paid directly for by the City. All other reproduction will be the responsibility of Consultant and as defined above, and included in the not -to- exceed contract fee. 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 usual and customary professional standards of care. 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 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 I 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 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 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 reasonable attorney's fees) (individually, a Claim; collectively, "Claims "), to the extent caused by the negligent acts, errors or omissions or willful misconduct of the Consultant or its principals, officers, agents, employees, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be legally liable. 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 5 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 that 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 I 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 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 7 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 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. 17. OWNERSHIP OF DOCUMENTS Provided Consultant has been paid for services rendered, each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. . Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 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. 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. 0 19. 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. 20. 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. 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 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. 22. 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 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. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant to the extent that they 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 10 intended to limit City's rights under the law or 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 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. 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: Michael J. Sinacori, P.E. Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3342 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Monica Simpson SWA Group, Inc. 580 Broadway, Suite 200 Laguna Beach, Ca. Phone: 949 -497 -5471 Fax: 949-494-7861 11 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On .the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 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, in force at the time services are rendered. 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. 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. 12 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any. other attachments attached hereto, the terms of this Agreement shall govern. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: —Cff�- Aaron C. Harp Assistant City Attorney for the City of Newport Beach ATTEST: M LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation MM Steve Rosansky Mayor CONSULTANT: SWA GROUP, INC. M (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Billing Rates f: luserslpbwlsharedlagreementslfy 07- 081swa group -back bay view landing.doc 14 EXHIBITA SCOPE OF SERVICES BACK BAY VIEW PARK SWA shall provide design development, construction documentation and bidding period as later described, for the following scope of items: 1. Finish grading and surface drainage of pedestrian pavements, boulders and new planting areas. 2. Pedestrian pavements. 3. Gazebo structure. 4. Permanent or temporary fence for rabbit protection. 5. Site furniture including benches and trash receptacles. 6. Planting and soil amendment. B. SWA will retain and direct the services of professional consultants as directed by Client for 1. Structural engineering for the gazebo. 2. Irrigation downstream from mainline pant -of- connection. 3. Architectural services for gazebo. PROCEDURE: Design Development Based on the approved plan presented on June 21, 2007 and upon Client's authorization to commence design development, SWA shall prepare design development drawings and a preliminary estimate of probable construction cost for SWA's portion of the work The design development plans will define the character and essentials of the project, including selection of materials. SWA shall assist Client in filing the appropriate plans and documents which are required to secure the necessary design approvals from the various governmental agencies having jurisdiction over the project, but Client shall be solely responsible for securing all such approvals. Construction Documentation Upon Client's approval of the design development plans and preliminary cost estimate, SWA will develop working drawings and technical sections of specifications to construct the work and shall prepare a final estimate of probable construction cost. Client shall be responsible for Bidding and Contract Requirements and General Requirements divisions of the specifications. Gazebo plans will be done as a bid alternate. SWA shall prepare working drawings and technical sections of specifications to reasonably conform to applicable codes and regulations of governmental bodies having jurisdiction over the work at the time of preparation. SWA will assist the client with submissions to the Coastal Commission if required. Michael Sinacori City Of Newport Beach CNBN701.A August 30, 2007 Revised September 13, 2007 Revised October 15, 2007 Paget In developing working drawings and technical sections of specifications, SWA shall use its best efforts to coordinate its services with those of other consultants and to maintain a construction budget in accordance with the preliminary design estimate of probable construction cost accepted by Client at the end of the preliminary design phase. Bidding or Negotiation Phase If required by the Client, SWA shall assist Client in obtaining and evaluating bids or negotiating proposals, and assist in awarding and preparing contracts for construction. Construction Observation SWA shall select and pre -tag specimen plant material that areto be Owner- supplied or proprietarily selected. SWA shall make periodic visits to the site to familiarize itself generally with the progress and quality of construction and to determine In general if the construction is proceeding in accordance with SWA's design intent and. construction documents. On the basis of its observations while at the site, SWA will keep Client informed of the progress of construction. SWA may recommend to Client the rejection of workfailing to conform to the contract documents. DEVELOPMENT BUDGETS A. As part of the Concept Design Phase, a proposed development budget for all items of work under the Scope of Services was established and approved at $867,000. B. This development budget shall be revised and approved at the completion of Design Development Phase and Construction Documentation Phase. DESIGN APPROVAL Michael Sinacori has been designated as the person responsible for design direction to SWA for this project and has the authority for design approval. In the event that the design, as approved by Michael Sinacori is rejected by others, and re- design is required, such re- design services shall be compensated as Additional Services. FW A MEETINGS AND SITE VISITS Michael Sinacori City Of Newport Beach CNBN701.A August 30, 2007 Revised September 13, 2007 Revised October 15, 2007 Page 3 This proposal includes Professional Services time for up to 4 meetings for coordination with Client, agencies, consultants or Owner, and up to 8 site visit /construction observation meetings, scheduled approximately as follows: Pre - construction Meeting i Layout of Hardscape Elements/Grading 1 Irrigation 2 Planting 2 Approval to Begin Maintenance Period i Punch List Completion i Total 8 EXCLUSIONS TO SCOPE OF SERVICES Client shall provide the following information or services as required for performance of the work. SWA assumes no responsibility for the accuracy of such information or services and shall not be liable for error or omissions therein. Should SWA be required to provide services in obtaining or coordinating compilation of this information, such services shall be charged as Additional Services. A. Topography and boundary surveys. B. . Legal descriptions of property. C. Soils testing and /or engineering. D. Existing site engineering and utility base information. E. Overhead aerial photographs at controlled scale. F. Engineering other than that provided within the Scope of Services. EXHIBIT B FEES AND TERMS Fee for Professional Services shall not exceed $102A00 including reimbursable expenses without further authorization. These services will be billed on an hourly basis based on the attached fee schedule. We estimate the following fee breakdown by phase: SWA Irrigation Architect Structural Design Development $16,000 $2,000 $3,000 Working Drawings and Specifications $30,000 $7,900 $7,000 $7,000 Coastal Commission Coordination $5,000 ( If Required) Construction Observation $9,000 $2,100 $2,000 $2,000 Sub Total $60,000 $12,000 $12,000 $9,000 Fee Total $93,000 Reimbursable Total $2000 Grand Total $95,000 REIMBURSABLE COSTS: The following costs shall be reimbursed at cost plus ten percent and are not included in the Fee for Professional Services: A. Cost of postage and shipping expenses other than first class mail. B. Photographic services C. Cost of models, special renderings, promotional photography, special process printing, special equipment, special printed reports or publications, maps and documents approved in advance by the Client . END FEES FOR PROFESSIONAL SERVICES: Services outlined under the Scope of Services or under Additional Services shall be provided on a time basis computed as follows: Principal Rate per Hour Berkson 240.00 O'Malley 220.00 Simpson 200.00 Maloney 180.00 Other principals, if used on this project, have rates ranging from $160.00 to $250.00 per hour. These rates are applicable for six months from the date of the Agreement for Professional Services, but may be increased subsequently without written notice. f JAMBOREE ROAD Legmd I Infill a 'Inhamsuo, u'flgmn Panf IMt1 Hg Plans ola,me vanery 2 Fs,o,Sauu. P;M.nsl Yi. ut Pmnt J EnulinQ Stiv�s [Ievel,Mii sorcm,m S,hv.liisomEe 3 N[v Sa,mi, C,au io , all —suu, 'Cenrcnm,l' ] IC- usuaue u . M1,.ia Pilulane 'Cmnyuwe . "us m¢a^fuliu B Eain;y 1tl1. I.eo- -rtma.n 9 Eneunp CUrm[ab,rrt .-,,, uin la N Sue,w,SnPo b..-u,. 11 Ne+'Sa,r,fu.,s,mFUaw rc.x;.,.. 12 13 aFm iusu, .a 13 IMII eaminp mc an ,¢lu FArn Ptiv u la e[ le Cnos,I M.,JeuilmGnaa Came pmu Urta1. uls do N,.aelh. in'a IS —&[ i aM l h—, .tul— er.,-n Is, " N. B,¢han. Pi tut I,,r—, Point a ny MYtuw.,nmsma alit �. Unym crty 16 HY4m a.al aiN aNW.,nd guumkas.. Landscape Plan Back Bay View Park Newport Beach. California Prepared for: City of Newpm Beach Preparedby. SWACrtoup CNBN701.A 0710.01 Document Schedule Back Bay View Park The SWA Group Revised 10/16/2007 M nth October Novemoer Task v, c , I vz e z 5 •� 12 1611923126301 _ - -- December .hnue 2 7 10 14 1721 2 4 7 11 14 #Ohtrrmatiot}" ,, . I City Approve Contract _ 2 Review Sculpture Locations 3 Prepare Gazebo Schematic / Update Development Plan i Meet with City to Review Plans O Prepare Final Approved Pia, _ _ I Format Base Sheets 2 Prepare Planting Plans 3 Prepare Imgation Coordination Plan 0 Prepare Gazebo Plan and Elevation Prepare Design Devclopment Details Submit TO City for SO% Design Review - - - - - - C. tGonstfvctfon:DOCUments_. ", ' - Prepare Planing Plans Prepare Irrigation Plans Prepare Gazebo Plan and Elevation Prepare Construction Details Prepare Specifications Submit Plans far City Plan Check 85% Revise 1st Plan Check Submit Plans for Plan Check 100% Revise 2nd Plan Check 0 Submit Plans to Coastal Commission F-M"l FA