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HomeMy WebLinkAbout11 - PSA for Lido VillageCITT OF NEWPORT BEACH Council Staff Report Agenda June 14, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community Development Department Kimberly Brandt, Director 949 -644 -3226, kbrandt(a)newportbeachca.gov PREPARED BY: James Campbell, Principal Planner APPROVED: n I V TITLE: Professional Services Agreement with William Hezmalhalch Architects for the preparation of Design Guidelines for the Lido Village Area ABSTRACT: In January of 2011, the City Council concluded a conceptual planning effort for the Lido Village area with the approval of Alternative 5b. The planning area considered was generally bounded by Newport Boulevard, Newport Bay and north of 32nd Street. The effort was a public /private partnership with the Vornado Realty, the Fritz Duda Company and the City. These partners, along with additional land owners within the area, have expressed a desire to continue the effort by creating landscape and architectural design guidelines. Approval of a professional services agreement with William Hezmalhalch Architects (WHA) for the preparation of the guidelines is desired. RECOMMENDATION: Authorize the City Manager to execute a professional services agreement with William Hezmalhalch Architects for the preparation of landscape and architectural design guidelines for the Lido Village Area (Attachment A). FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this process. It will be expensed to the Zoning Code Re -write account in the Community Development Department, 2710 - 82932. 1 Professional Services Agreement with William Hezmalhalch Architects for the preparation of Design Guidelines for the Lido Village Area June 14, 2011 Page 2 DISCUSSION: On January 25, 2011, the City Council approved Alternative 5b as a conceptual land use plan for the Lido Village planning area. As a concept plan, it has no legal effect upon any property within the planning area; however it should be used as a guide by interested parties. William Hezmalhalch Architects, under the supervision of Timothy Collins, was the principal design firm who prepared the conceptual plan. J l J • J J J J ' J J ' J I • .../ J J O ) J J J � J J �• J JJ r 1JJAJiI��YI JJ �'/ -`J ' -.. I , , JJ�J iJ JJJi�"�FJ i.J ��'i►t,,. -J at ALTERNATIVE 5B 2 Professional Services Agreement with William Hezmalhalch Architects for the preparation of Design Guidelines for the Lido Village Area June 14, 2011 Page 3 As noted previously, it is the desire of several major stakeholders and an additional property owner within the area to continue the effort by preparing landscape and architectural guidelines. These guidelines would provide consistent design guidance for future projects within the planning area. Additionally, refinements of the conceptual land use plan would be explored for the community and City Council to consider. The stakeholders, with the City Council's consent, wish to provide consistent project management and design services and they request that Timothy Collins and WHA be retained again. Staff agrees with this approach as these consultants are uniquely qualified given previous efforts to develop the conceptual plan. For this reason, the City Manager has waived a competitive bidding process for this agreement. If authorized, the effort would proceed immediately and conclude in fall of 2011, with City Council consideration of the draft guidelines after Planning Commission review. Oversight of the preparation of the design guidelines would be delegated to the Ad Hoc City Council Revitalization Committee (Mayor Henn and Council Members Selich and Hill) and a Citizens Advisory Panel where public outreach and public participation would be solicited. Pursuant to Council Policy F -14, a City Council approval of an agreement in excess of $120,000 is required. The City Manager is prepared to execute a separate professional services agreement with Timothy Collins for project management as it is within the limits of his authority pursuant to Council Policy F -14. The overall cost of the effort would be as follows: Project management, Tim Collins $25,000 Design services, WHA $123,045 Total $148,045 Staff has worked with Vornado Realty, the Fritz Duda Company, and Marshal Development to identify a cost sharing arrangement based upon the land area that each controls. The sharing costs would be documented with a separate written agreement. And would be as follows: Fritz Duda Company $43,525 Vornado Realty $34,110 Marshall Development $9,593 City $60,817 Total $148,045 3 Professional Services Agreement with William Hezmalhalch Architects for the preparation of Design Guidelines for the Lido Village Area June 14, 2011 Page 4 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by Kimberly Brandt, P Community DeveldIlment Director Attachments: A. Professional Services Agreement with WHA 11 Attachment A Professional Services Agreement 5 NO PROFESSIONAL SERVICES AGREEMENT WITH WILLIAM HEZMALHALCH ARCHITECTS, INC. THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement') is made and entered into as of this day of June, 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and William Hezmalhalch Architects, Inc. a California Corporation whose address is 2850 Redhill Avenue, Suite 200, Santa Ana, California, 92705 ( "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. The existing City Hall located at 3300 Newport Boulevard ( "City Hall Site') may be vacated by City Hall in 2012 concurrent with completed construction of the proposed new Civic Center. C. City desires to engage Consultant to prepare design guidelines for the Lido Village are that is generally bounded by Newport Boulevard, Newport Bay and 32nd Street including the existing City Hall site, Via Lido Plaza and Lido Marina Village properties. 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 Todd Larner. F. City has solicited and received a proposal from Consultant and has reviewed the previous experience and evaluated the expertise of Consultant, and desires to have City 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 January, 2012, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. I 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit E. 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 accordance with the provisions of this Section and the Payment Schedule attached hereto as Exhibit B and the Schedule of Billing Rates attached hereto as Exhibit D, 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 One Hundred Twenty Three Thousand and Forty Five Dollars ($123,045.00) 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 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. Professional Services Agreement Page 2 2 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. 4.2 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 D. 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 TODD LARNER 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. f d •_11L4 I I .1619 :LA I Is] This Agreement will be administered by the Community Development Department. Kimberly Brandt, Director, or her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 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 documents and materials contemplated by this Agreement including concept plans, base maps, visioning boards, images, renderings, Professional Services Agreement Page 3 9 etc. and agendas. Consultant will be required to coordinate the required 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. D. Establish and maintain a Project file transfer protocol site to manage electronic files and their dissemination of the RFP. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, Professional Services Agreement Page 4 10 without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. i `t1K4Z9] ;J 4:?-A I M i 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. 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. 13.INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Professional Services Agreement Page 5 11 A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 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 Professional Services Agreement Page 6 12 injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: i. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) Professional Services Agreement Page 7 13 days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 14. 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. 15. 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. 16. 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 and only as to the City Hall Site, 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 and shall deliver to City a complete copy of all documents upon the completion of Project. 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 Professional Services Agreement Page 8 24 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. 17. 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. 18. 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. 19. 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. 20. 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. Professional Services Agreement Page 9 15 21. 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. P*J14g11WAK1:410: 110110114JjI:J11 6YA6119:I4Y6101 �6'ill0IF_1�11 &y City reserves the right to employ other Consultants in connection with the Project. 23. 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. 24. 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: Kimberly Brandt, Director Community Development Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3228 Fax: 949 - 644 -3224 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Todd Larner William Hezmalhalch Architects, Inc. 2850 Redhill Avenue, Suite 200 Professional Services Agreement Page 10 10 Santa Ana, CA 92705 Phone: 949 - 250 -0607 Fax: 949 -250 -1529 `k1KN W11 JJ 61 The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). K-11111210J,I1�L11 IIQ�I 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. 26.1 Notwithstanding the above provisions, this Agreement shall automatically terminate upon failure of Consultant to enter agreements similar to this Agreement with the owners of the Other Properties. In such event, all payments previously paid to consultant shall be returned to City in full. 26.2 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. 27. 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. flk.IhV_1194N Professional Services Agreement Page 11 17 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. 29. 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. 30. 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. 31. 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. 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. Professional Services Agreement Page 12 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, OFFICE OF THE CITY ATTORNEY A Municipal Corporation B By: Lennie Mulvihill, /% /� Dave Kiff, City Manager Assistant City Attorney ATTEST: CONSULTANT: WILLIAM HEZMALHALCH ARCHITECTS INC. By: By: Leilani Brown, City Clerk am Dinna Mize, Authorized Agent Lorrie Gagne, Authorized Agent Attachments: Exhibit A — Scope of Services Exhibit B — Payment Schedule Exhibit C — Design Guidelines Outline Exhibit D — Schedule of Billing Rates Exhibit E — Schedule /Calendar (Al 0-00280107.21.10 Professional Services Agreement Page 13q 1q 20 Exhibit A WILLIAM HEZMALHALCH A 7 C H I T E C S I N C. June 7.2C11 SCOPE OF WORK LIDO VILLAGE DESIGN GUIDELINES TCC&A, City of Newport Beach staff, Lido Partners, Vomado Realty Trust (Client) SCOPE William Hezmalhalch Architects is pleased to submit the following Scope of Work for the Lido Village Conceptual Land Plan Design Guidelines within the City of Newport Beach. The intent of these services and Design Guidelines documentation is to establish aesthetic standards for the village. The document is also intended to be suitable as an element of a future specific plan process for the Lido Village study area. The content of the document will follow the attached "Design Guidelines Outline — Draft Table of Contents" (Exhibit C). The following list of services is a continuation of TC Collins and WHA's work efforts completed January 25th 2011 and the City Council's resolution for the concept plan. Scope deliverables will be in multiple phases of work as requested by major and minor stakeholders involved. Task 1: Lido Village Design Guidelines 80% DRAFT. William Hezmalhalch Architects will assist TCC&A, City of Newport Beach staff, Lido Partners, Vornado Realty, Marshall Development (Client) assemble village wide Planning, Architectural and Landscape Architectural Design Guidelines. We will provide Base h4ap updates. document assembly and management of the design guidelines assembly. A. Kick Off Meeting I. WHA will'participate in one (1) Kick -Off meeting where we will work with key stakeholders in determining design guideline layout and vision strategy for Lido Village. Exact time and location to be determined. ii. WHA will participate in one (1) Citizens Advisory Panel ( "CAP ") orientation meeting. B. Base map Update i. WHA will update and prepare an overall Lido Village Concept Master Plan Base Map. We will incorporate edits and new mapping information to generate a comprehensive base plan for the Design Guidelines document. a. Updated Base Map with new Lot line adjustments. One (1) CAD base map with updated ownership lines, verify existing street location ROW, building placement and easements. These services are intended to be completed by design team engineer but do not include surveying and or Professional Services Agreement Page 14 addition base map assembly/ construction. Initial base map to be provided by stakeholder engineer and or city staff. C. Lido Village Conceptual Landscape Visioning i. WHA design team will prepare a conceptual landscape visioning package for the Lido Village Study Area. Exhibits and content will be a series of images, hand and CAD depicting landscape character and vision for the village. All exhibits will be documented and incorporated into the overall design guidelines. WHA and design team members will generate the following estimated deliverables. a. Conceptual Streetscape Master Plan. One (1) color exhibit depicting street hierarchy and proposed intent. Format and scale to be determined. b. Typical Streetscape Vignettes. Four (4) - Six (6) hand drawn and or CAD color plan concept vignettes demonstrating visioning intent for the site. Format and scale to be determined. c. Proposed Planting Palate. One (1) proposed planting and species selection board with text and plant materials. Format and scale to be determined. d. Conceptual Street Sections and Landscape Improvements. One (1) color exhibit with key map and proposed landscape enhancements. Format and scale to be determined. e. Landscape Visioning Board; Text and imagery depicting outdoor FF &E opportunities. One (1) board with images and text. f. Pedestrian circulation Master Plan. One (1) color exhibit depicting pedestrian connectivity, bridge connections and circulation. Format and scale to be determined. g. Signage and Way finding Image Board - One (1) board with images and text. D. Lido Village Design Guidelines, 80% DRAFT: The Design Guidelines will depict criteria for architectural style, landscape architectural style, signage, and lighting to ensure quality & continuity for future development. These guidelines are intended to serve as the governing document for stakeholders who wish to expedite development prior to a specific plan process for the area. The Lido Village Design Guidelines will conform with the city general plan, Concept Plan 5B and any applicable City standards. I. WHA will prepare one (1) 80% complete design guidelines document for the Lido Village Study Area. The guidelines will be generated in In Design format and be converted to electronic pdf. We will include five (5) printed hard copies of the design guidelines. Additional copies and reprographics will be considered a reimbursable expense. WHA and design team members will generate but not be limited to the following format and content. a. Village Overview - Descriptive text and supporting imagery. b. Village Guiding principles and guidelines intent and purpose. c. Urban Design and Parcel Criteria - Village concept plan and critical edge designation with form and massing criteria. d. Architectural Styles - Define village style, "Newport Eclectic' and other Southern California vernaculars. e. Architectural Details - Specific criteria that represent style and character for future development. f. Village Landscape - Include deliverables from 1 C into document format. g. Lighting and Signage - Descriptive text and supporting imagery. Professional Services Agreement Page 15 22 h. Sustainability - Descriptive text and supporting imagery that promote sustainable practices for the future of the village. i. Implementation — Descriptive text and supporting images. fl. Document Coordination — As part of the above document assembly we will meet with stakeholders and representatives of the Neighborhood Revitalization Committee to determine the format/ layout, establish table of contents and list of exhibits. The majority of the graphics will include photographs and simple conceptual design diagrams depicting existing buildings, styles and landscape that reflect the future village character. a. Stakeholder Design Guidelines Meeting — We will conduct and lead the initial design guidelines meeting with stakeholders and Neighborhood Revitalization Committee members. b. Coordinate with CAP; CAP's function is to consult with team to guide drafting of Design Guidelines and make recommendations to CC Ad Hoc Committee c. Provide coordination and management with stakeholders in compiling planning elements of the Design Guidelines. d. Incorporate participant input and comments for the 80% document, receive and coordinate updates to electronic text and graphics from various stakeholders. E. Team Meetings with Stakeholders, City Staff, and CAP. i. WHA will participate in two (2) team meeting with stakeholders and city staff for the 80% DARFT of the Lido Village Design Guidelines. We will outline key dates and expected deliverables to ensure timely response by reviewing parties. a. Guidelines Kick -Off Meeting. Time and location to be determined. b. Guidelines coordination Meeting. Time and location to be determined. Focus Group Workshop i. WHA will participate in one (1) community focus group workshop with the Neighborhood Revitalization Committee /CAP. This is to maintain schedules and milestones for guidelines approvals. The intent of the workshop is to present progress as well as gather input from specific representatives as to the design vision for the village. Task 1: Estimated Fixed Fees WHA Inc (Management and Design Guidelines) $42,730.00 FUSCO (Engineering and Base Mapping) $12,750.00 IMA Desion (Landscape Architecture) $11,000.00 Sub Total $66,480.00 2. Task 2: Lido Village Design Guidelines and Community Workshop. Upon completion of Task 1 work services WHA team members will incorporate initial edits and comments from stakeholders, community groups and city staff for the Lido Village Design Guidelines. Using available exhibits and resources generated in the initial draft, we conduct a community open house and prepare a series of image boards demonstrating progress and visioning intent for the village. A. Lido Village Design Guidelines 90% DRAFT: Professional Services Agreement Page 16 23 t. We will meet with stakeholders to incorporate changes and edits to text, graphics and support images for the Lido Village Design Guidelines. We will incorporate hand written and or digital edits for the 90% draft. Major revisions and drastic scope changes will result in a change order and or additional service agreement. it. Provide coordination and management with stakeholders in updating planning, architectural and landscape elements of the Design Guidelines. iii. Provide 90% DRAFT — We will produce five (5) printed hard copies of the 90% design guidelines. Additional copies and reprographics will be considered a reimbursable expense. B. Planning Commission Presentation I. WHA will participate in one (1) planning commission presentation of the 90% Lido Village Design Guidelines. We will highlight key components and summarize work efforts in generating guidelines for the village. Actual content/ format for presentation are to be determined. C. Community Open House. i. WHA will conduct the Lido Village Open House and prepare a series of full size presentation boards highlighting key components of the vision guidelines. The intent of the open house is showcase progress and vision intent for the village and gather community feedback. Design exhibits and content will be a series of text panels, photo images pulled from the initial draft of the guidelines. We will also prepare hand drawn character renderings of the site depicting future design intent for the village. All exhibits will be documented and incorporated into the overall design guidelines document. WHA and design team members will generate the following estimated deliverables. a. Presentation Boards. We will prepare five (5) — eight (8) full length 48" x 72" presentation bards for the community workshop/ open house. Actual content and format are to be determined. Additional boards, copies and reprographics will be considered a reimbursable expense. b. Character Renderings. We will prepare four (4) individual perspective renderings. These renderings will be hand drawn and color enhanced. Actual views and locations of renderings are to be determined. c. Document Preparation — We will prepare an Open House summary document for stakeholders highlighting presented materials and community feedback. Five (5) printed hard copies document will be included. Additional copies and reprographics will be considered a reimbursable expense. Task 2: Estimated Fixed Fees WHA Inc (Management and Design Guidelines) $32,215.00 FUSCO (Engineering and Base Mapping) $4,250.00 Sub Total $43,865.00 3. Task 3: Final Draft and Professional Presentations. Near the end of task 2 services, WHA will begin preparing a professional presentation to accompany the design guidelines. The presentation will highlight the process and contents of the Lido Village Design Guidelines as the document moves forward. Concurrently we will prepare the final draft of the design guidelines. Professional Services Agreement Page 17 Mil A. Lido Village Design Guidelines 100% DRAFT: I. We will meet with stakeholders to incorporate final changes and edits to text, graphics and support images for the Lido Village Design Guidelines. Major revisions and drastic scope changes will result in a change order and or additional service agreement. ii. Provide coordination and management with stakeholders in completing the architectural and landscape portion of the Design Guidelines. iii. Receive updates to electronic text and graphics from various stakeholders. Revisions to such file sections to be provided by contributing consultant. iv. Provide Final Design Guidelines document with five (5) printed hard copy and one (1) electronic pdf. Additional copies and reprographics will be considered a reimbursable expense. B. Team Meetings with Stakeholders, City Staff, and CAP. I. WHA will participate in one (1) meeting for final preparations prior to a city council presentation of the Final Lido Village Design Guidelines. We will highlight key components and summarize work efforts in generating guidelines for the village. Actual content/ format and time are to be determined. C. City Council Presentation I. WHA will participate in one (1) city council presentation of the Final Lido Village Design Guidelines. We will highlight key components and summarize work efforts in generating guidelines for the village building upon the presentation package from the planning commission. Actual content/ format for presentation are to be determined. Task 3: Estimated Fixed Fees WHA Inc (Management and Design Guidelines) SERVICES NOT INCLUDED IN THIS SCOPE • Marina Design • Traffic Analysis • Parking Inventory COMPENSATION FOR SERVICES: Total Compensation for Services: Estimated Reimbursables: Architectural Services + Reimbursables: REIMBURSABLE EXPENSES Professional Services Agreement $8,700.00 1. Task 1: $66,480.00 2. Task 2: $43,865.00 3. Task 3: $8,700.00 $119.045.00 $4,000.00 $123,045.00 Page 18 25 The Architect is to be reimbursed at 1.15 times the cost for all materials, graphic supplies, blueprinting, CADD disks, CADD plotting, mylar reproducibles, photo work /reductions for record sets, governmental fees, messenger charges, automobile mileage, transportation and living expenses in connection with out -of -town travel authorized by the Client. Automobile mileage will be billed at the standard IRS rate. Payment for reimbursable expenses will be due in full on a monthly basis. Professional Services Agreement Page 19 MM Exhibit B I9 -lydJi 14►11 d6i4j71411114 ;1 Compensation for work performed under this Agreement shall be disbursed in increments, concurrent with completion of specified events and /or tasks included in the Scope of Services (Exhibit A) in accordance with the following schedule: Professional Services Agreement Page 20 27 TASK PAYMENT Task 1 Initial retainer upon notice to proceed $15,000 Kick -off meeting, refinements to the Task 2 Conceptual Plan 5B, orientation of $30,761 Neighborhood Revitalization Committee (WHA Tasks 1A and B) Delivery to stakeholders of the Conceptual Task 3 landscape design package and 80% draft of $30,761 the Design Guidelines, focus group workshop (WHA Tasks 1 C, D, E, and F) Delivery to stakeholders of the 90% draft of Task 4 the Design Guidelines, Planning Commission $30,761 Presentation, and Community Open House (WHA Tasks 2A, B, and C) Final draft and professional presentation of Task 5 100% document, team and stakeholder $15,762 meeting, and City Council Presentation Professional Services Agreement Page 20 27 22 Fvhihif r Desicin Guidelines Outline DRAFT Table of Contents Chapter 1.1 Introduction • Summary & Objectives • Planning Authority/ Stakeholder Roles • Purpose of Design Guidelines • Next Steps and Revitalization Chapter 1.2 Overview • The Lido Village Overview • Village Cornerstones • Planning Areas— City Hall Site, Lido Plaza, Lido Marina, Lido Triangle • Village Edges and Boundaries — Street Hierarchy and Edge Conditions • Pedestrian Connections and Open Space • Existing Zoning and General Plan Compliance. Chapter 1.3 Architectural Design Guidelines • Big Idea " Newport Eclectic" • Architectural Styles • Feature Elements • Store Fronts and Street Interface • Back of House Treatments and Conditioning • Materials and Applications • Material Wrapping • Door Treatments and Gateway Elements • Shading and Awning Criteria • Exterior Stairs and Secondary Access • Mechanical Screening and Treatments • Reciprocal Use/ Access Easements Chapter 1.4 Landscape Design Guidelines • Landscape Big Idea • Landscape Character • Smart Landscape Elements • Street Hierarchy and Identity • Street Landscaping • Common Area Landscaping • Landscape Palate and Treatments • Plaza Landscaping • Water Elements/ Features • Sidewalk and Hardscape Treatments • Hardscape Materials and Colors • Street Furniture and Treatments • Screening and Wall Treatments Professional Services Agreement Page 21 29 Chapter 1.5 Sustainability • Introduction and Overview • Governing Jurisdictions and Compliance • Special Treatments and Considerations • Implementation Chapter 1.6 Design Review - Practical Application • Design Guidelines and approvals • Design Review Procedures • Submittal Requirements and Approvals • Planning Commission action Chapter 1.7 Appendix Professional Services Agreement Page 22 30 Exhibit D SCHEDULE OF BILLING RATES William Hezmalhalch Architects, Inc. Senior Principal $150.00 Principal(s) $135.00 Professional 111 $125.00 Professional 11 $120.00 Professional $120.00 Technical Staff IV $110.00 Technical Staff III $95.00 Technical Staff II $85.00 Technical Staff I /Administrative /Operations $50.00 Professional Services Agreement Page 23 31 S2 Fvhihi4 F Schedule /Calendar for Design Guidelines Phase of Conceptual Planning 6/14/11 Contracts awarded; notice to proceed 6/17/11 Kick off meeting with stakeholders and staff; review template and schedule 6/23/11 Orientation meeting with Neighborhood Revitalization Committee — "CAP" 7/21/11 Delivery of 80% draft of Design Guidelines and Conceptual Landscape Professional Services Agreement Page 24 33 Design vision 7/27/11 Focus Group workshop 7/29/11 Team meeting with stakeholders /staff to review feedback 8/10/11 Delivery of 90% draft; Planning Commission meeting 8/16/11 Community Open House 8/22/11 Team meeting with stakeholders /staff to review feedback 8/31111 Deliver Final Document to City 9/13/11 City Council Meeting presentation Professional Services Agreement Page 24 33 S4