HomeMy WebLinkAboutC-7133-1 - On-Call PSA for On-Call Landscape Architecture ServicesI
CA
M
r AMENDMENT NO. TWO TO
ON-CALL PROFESSIONAL SERVICES AGREEMENT
U WITH BGB DESIGN GROUP, INC. FOR
ON-CALL LANDSCAPE ARCHITECTURE SERVICES
THIS AMENDMENT NO. TWO TO ON-CALL PROFESSIONAL SERVICES
AGREEMENT ("Amendment No. Two") is made and entered into as of this 29th day of
June, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("City"), and BGB DESIGN GROUP,
INC., a California corporation ("Consultant"), whose address is 3185 C1 Airway Avenue,
Costa Mesa, CA 92626, and is made with reference to the following:
RECITALS
A. On August 25, 2017, City and Consultant entered into an On -Call Professional
Services Agreement ("Agreement") for On -Call Landscape Architecture Services
("Project").
B. On April 23, 2019, City and Consultant entered into Amendment No. One to the
Agreement ("Amendment No. One") as Consultant was asked to perform a higher
volume of Work than was originally anticipated, to reflect additional services or
Work not anticipated in the Agreement, to extend the term of the Agreement to
June 30, 2021, to increase the total compensation and update the Conflicts of
Interest and Claims Sections.
C. The parties desire to enter into this Amendment No. Two to extend the term of the
Agreement to August 24, 2022 and update Insurance requirements.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows.-
1.
ollows:1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on August 24, 2022, unless terminated earlier as set forth herein."
2. INSURANCE
Exhibit C of the Agreement shall be deleted in its entirety and replaced with Exhibit
C, attached hereto and incorporated herein by reference. Any reference to Exhibit C in
the Agreement shall hereafter refer to Exhibit C attached hereto.
3. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
BGB Design Group, Inc. Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date: q 7roZ Date: JUN 2 2 X021
By: �''-
� By:
Aaron C. Harp a� Gr ce . Leung
City Attorney HS.oa'� Ci anager
ATTEST: y� CONSULTANT: BGB DESIGN GROUP,
Date: JV•o2�; a(�oZ� INC., a California corporation
Date:
ItiL�.:JI. •� %IiW�
Signed in Counterpart
By:
Arthur D. Guy, III
Chief Executive Officer/Secretary
[END OF SIGNATURES]
Attachments: Exhibit C — Insurance Requirements
BGB Design Group, Inc. Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:Q�Z-
By:
Aaron C. Harp
City Attorney Cio.Oa' A
Co
ATTEST:
Date:
LIM
Leilani I. Brown
City Clerk
Attachments
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
CONSULTANT: BGB DESIGN GROUP,
INC., a Calif rnia cor ration
Date: / O / ��/
By:
Arthur D. Guy,
Chief Executive Officer/Secr tary
[END OF SIGNATURES]
Exhibit C — Insurance Requirements
BGB Design Group, Inc. Page 3
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of 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. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. 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.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of 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 each accident.
BGB Design Group, Inc. Page C-1
D. Professional Liability (Errors & Omissions) Insurance. 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) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees 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 from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence 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 and other
endorsements as specified herein for each coverage. 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 Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
BGB Design Group, Inc. Page C-2
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. 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. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
BGB Design Group, Inc. Page C-3
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. 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, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Consultant's 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.
BGB Design Group, Inc. Page C-4
October 26, 2021
BGB Design Group
3185 C1 Airway Avenue
Costa Mesa, CA 92626
City of Newport Beach
Insurance Compliance
PO Box 100085 - FV
Duluth, GA 30096
Reference Number: FV00000669
This Account has moved from non-compliant to COMPLIANT status and currently in compliance for
certificate of insurance requirements.
As of the date above, your insurance meets City of Newport Beach insurance requirements. We appreciate your efforts
and those of your insurance agent in working with our insurance representatives.
Please call us at (951) 766-2285 if you have any questions.
Sincerely,
City of Newport Beach
Compliant Notice [CA1 ]
BGB I DESIGN GROUP
Landscape Architecture Planning Urban Design
April 3, 2020
Michael Sinacori, Assistant City Engineer
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Subject: Landscape Architectural Services Proposal for Newport Boulevard Median and
Landscape Setback Area (Hospital Road to Industrial Way), Placentia Avenue Median
(Between 15th and 16th St.) and West Newport Trailer Park Frontage
Dear Mr. Sinacori:
BGB Design Group looks forward to the opportunity to continue and serve the City of Newport
Beach to provide landscape and irrigation design services for the 1,720 foot stretch of Newport
Boulevard, Placentia Avenue median and the landscape setback along the PCH frontage to the
trailer park bordering Huntington Beach
PROJECT UNDERSTANDING
Newport Boulevard:
It is understood that the City wishes to improve the appearance of the existing median landscape
without altering the stamped concrete paving. Additionally, the parkway slopes are intended to
receive landscape enhancements by retaining the existing ice plant (Carpobrotus edulis), trees,
shrubs etc. and supplementing with other compatible material to create a strong and cohesive
appearance. The median enhancements will include the grub and clear of all the understory shrub
plantings, while retaining the existing Mediterranean Fan and Windmill Palms.
BGB will present up to three planting schemes for Staff and Council review.
The irrigation system will initially be reviewed with BGB and City maintenance staff to better
understand the functionality within the medians. It is understood that the current watering regime
is by hand watering with quick couplers. With retaining of the existing stamped concrete, it is
presumed the existing pressure mainline will remain intact with a new system designed
downstream of the valve connections to the mainline (i.e. Jamboree Road Improvements). One
option (if existing control wires have been compromised), is to present a controller design with
the Rainmaster DX3 that offers both conventional and 2- wire capabilities. The existing wiring
could be sacrificed to pull new TW cable thru existing (presumed) sleeves. The cellular network
will make for easy communication with the iCentral App and the City's Laguna Central Control.
Placentia Median:
BGB was engaged by the City in December of 2019 to provide a preliminary design study for this
stretch of Placentia Avenue. Two planting concepts were provided, but it is understood that
stakeholder input will be required to further the design direction. The City shall engage a civil
engineering consultant to provide median survey and design for the final alignment, and
3185-C1 Airway Avenue Costa Mesa, CA USA 92626 +1 714 545 2898 www.bgb-inc.com
Landscape Architectural Proposal- Newport Blvd. between Hospital Rd. & Industrial Way,
Placentia Median between 1511 and 16th St. and West Newport Trailer Park Frontage Landscape
construction documentation. The scope described below will include stakeholder meeting(s),
coordination with City staff, civil consultant and final landscape and irrigation design.
West Newport PCH Trailer Park:
To the west of the existing improvements from the BGB prepared West PCH improvements on
the westbound side, the proposed scope shall complete landscape and irrigation improvements
along the trailer park frontage to the Huntington Beach boundary. An existing Rainmaster
controller located west of Highland St. and water meter serving a small landscape setback area
development will serve as the point of connection for power and water. Proposed improvements
will be in similar style with the recent PCH improvements. No tall hedges or mass plantings that
may encourage encampments will be designed.
Base information from Phase I PCH improvements will be used for this scope of work. A separate
set of Construction Documents will be prepared to allow for Caltrans review.
SCOPE OF SERVICE
1.0 INTENT OF WORK:
1.1 Newport Blvd: It is our understanding that our scope of work consists of general
landscape demolition (grub & clear), irrigation and planting of median areas and
variable sloped landscape setback areas to the east and west of the roadway.
Recent WQMP project(s) have disturbed existing landscape near the toe of the
easterly side of Newport Blvd. The existing bioswale landscape may require
directed trimming and grubbing and supplemental planting to increase the
aesthetics. The westerly slopes are in poor condition which will require more
extensive renovation.
• (3) base sheets at 1"=20'-O" scale are estimated
1.2 Placentia Median: BGB will be available for meeting(s) with stakeholders to
discuss design options if/as required by Staff. Following development of median
alignment and final background base prepared by Civil engineer, BGB shall
prepare construction documentation. Civil shall also be responsible for
establishing a water meter and power for controller.
• (1) base sheet at 1 "=20'-0"
1.3 Trailer Park: Background base shall be prepared from Phase I PCH files.
Separately contracted civil work by City shall provide improvements for the trailer
park entry drive to meet ADA compliance. A separate set of construction
documents shall be prepared for this scope of work.
• (1) base sheet at 1 "=20'-0"
1.4 Assumptions:
• Plans will be on standard Public Works City Base sheets
• City will separately contract with on-call civil engineer to provide aerial
topography with boundary control and provide background CAD files for
the project limits.
• Specifications will be the technical sections of the City Standard
Specification
Page 1 2
Landscape Architectural Proposal- Newport Blvd. between Hospital Rd. & Industrial Way,
Placentia Median between 1511 and 16th St. and West Newport Trailer Park Frontage Landscape
1.5 Services specifically not included within this scope of work include the following:
• Site precise grading and drainage.
• All civil and/or structural engineering.
• Hardscape demolition and/or design.
• All City processing of plans.
• Denoting of how water and electrical are being brought to the irrigation
points of connection as shown on the irrigation plans. For Newport Blvd; It
is assumed existing point(s) of connection are adequate to supply the limits
of this project. The existing controller can be upgraded to support the
design scope.
• Project manual and all divisions other than landscape technical
specifications shall be by others.
• Landscape Lighting
• Signage
1.6 Newport Boulevard: Estimated time for Conceptual Development documents to be
approximately three (3) weeks (once base files are provided by the City), and the
time for Construction Documents to be approximately four (4) weeks, pending any
scheduling conflicts or delays by others including City review time.
2.0 SCOPE OF SERVICES:
Scope of work will include the following services:
2.1 Establish procedures, liaison and work schedules.
2.2 Collect and review all on- and off-site applicable data, planning and design criteria,
as supplied by the City.
2.3 Establish dialogue to ascertain City expectations.
2.4 Format CAD base files provided through the City.
2.5 Conceptual Development Phase for Newport Boulevard
2.6 Construction Documentation Phase for Newport Boulevard and Placentia Median.
2.7 Construction Administration for Newport Boulevard and Placentia Median.
3.0 CONCEPTUAL DEVELOPMENT PHASE
This phase consists of developing design concepts for Newport Boulevard. The plans
representing this phase are denoted as "Conceptual Landscape Plans", and will illustrate
the following:
3.1 Existing Conditions Exhibit
3.2 Planting Conceptual Plan
Page 1 3
Landscape Architectural Proposal- Newport Blvd. between Hospital Rd. & Industrial Way,
Placentia Median between 1511 and 16th St. and West Newport Trailer Park Frontage Landscape
3.3 Agronomy testing Newport Blvd - (4 total) locations ([2] westerly slope, [1] median,
[1] easterly slope). Trailer Park (1) location.
3.4 Opinion of probable construction costs
3.5 Meetings if/as required for Newport Blvd. and Placentia Ave.
4.0 CONSTRUCTION DOCUMENTATION PHASE
Following approval of the Conceptual Development Phase, BGB will proceed with the
Construction Documentation Phase. This phase consists of preparing documents for
bidding and/or construction and includes the following:
4.1 Landscape Demolition Plan (Newport Blvd. only)
4.2 Irrigation Plan and Details
4.3 City Water Conservation Package as required
4.4 Planting Plan and Details
4.5 Landscape Technical Specifications only
4.6 Opinion of probable construction costs
4.7 In-house plan check
4.8 BGB will provide the City with approved plans. BGB will amend plans at no
additional cost to the City should revisions be necessary to bring the plans into
conformance of previously established guidelines. Once work has begun, any
revisions to the plans due to changes, additions or deletions by other parties shall
constitute additional services, and be invoiced accordingly.
5.0 CONSTRUCTION ADMINISTRATION PHASE
Upon acceptance of the Construction Documentation Phase by the City, we will proceed
with the Bidding Administration Phase. This phase will include the following:
5.1 Assist during the bidding process
5.2 Provide necessary prints to all parties at the City's request. The cost of all printing
shall be reimbursed to consultant at cost to the City.
5.3 Answer all contractor questions, administer any addenda, clarifications, or
submittal reviews necessary to bid plans.
5.4 Provide periodic field observation services including review of final plant
placement.
Page 14
Landscape Architectural Proposal- Newport Blvd. between Hospital Rd. & Industrial Way,
Placentia Median between 1511 and 16th St. and West Newport Trailer Park Frontage Landscape
5.5 Preparation of As -Built irrigation plans. Contractor shall provide BGB with accurate
notated field drawings which BGB will update CAD files. Contractor will use CAD
as -built files to prepare colored controller charts per specifications.
6.0 FEES
The fee for Landscape Architectural services as outlined above for Newport Blvd.
Placentia Ave. and PCH Trailer Park will be performed on an hourly not to exceed basis
per the Manpower Matrix (attached) and summarized as follows.
Conceptual Design Phase $ 8,020
Construction Documentation (Newport Blvd.) 25,650
Construction Documentation (Placentia Ave.) 6,420
Construction Documentation (Trailer Park) 7,020
Construction Administration 4,360
Agronomy Testing 700
Total Project Fee: 52,170
6.1 Approval of Services / Changes to Approved Services
The Landscape Architect shall proceed with a phase or design package of the
Landscape Architect's services only after receiving the City's written approval of
the services and deliverables provided in the previous phase and written
authorization to proceed with the next phase. Revisions to drawings or other
documents shall constitute Supplemental Services when made necessary
because of City -requested changes to previously approved drawings or other
documents, or because of City changes to precious budget parameters and/or
Program descriptions.
6.2 Opinions of Probable Construction Costs, (OPC's)
Opinions of probable construction costs provided by the Landscape Architect are
based on the designer's familiarity with the landscape construction industry and
are provided only to assist the City's budget planning; such opinions shall not be
construed to provide a guarantee or warranty of the actual construction costs at
the time construction bids are solicited or construction contracts negotiated. Since
the Landscape Architect has no control over the cost of labor, materials, equipment
and/or the contractor's methods of determining bid prices, accordingly, the
Landscape Architect cannot guarantee that bids or actual costs will not vary from
his opinion. Unless expressly agreed in writing and signed by the parties, no fixed
limit of construction costs is established as a condition of the Agreement by the
furnishing of opinions of probable construction costs. Should the City require
further detailed cost information, it is recommended that the services of a
professional cost estimator be procured.
Page 1 5
Landscape Architectural Proposal- Newport Blvd. between Hospital Rd. & Industrial Way,
Placentia Median between 1511 and 16th St. and West Newport Trailer Park Frontage Landscape
6.3 Construction Safety
The presence of the Landscape Architect, its employees, or consultants at the
Project site shall not be deemed an assumption by the Landscape Architect of any
obligations, duties, or responsibilities for safety, including but not limited to
construction means, methods, sequences, techniques, or procedures necessary
for performing, superintending, or coordinating the work of the Project in
accordance with the Construction Documents or any regulatory health or safety
requirements. The Landscape Architect, its employees, and consultants have no
authority to exercise any control over any construction contractor, it's employees,
or subcontractors in connection with their work or health and safety programs and
procedures.
7.0 LANDSCAPE ARCHITECT COMPENSATON
7.1 Compensation for Landscape Architectural services performed under this
Agreement shall be a stipulated sum plus Reimbursable Expenses as defined
herein and is subject to the provisions of the BGB On -Call Service Agreement with
the City of Newport Beach. Supplemental Services, when requested in writing by
the City, shall be compensated on an hourly basis at the rates provided per the
stipulated rates within the On -Call agreement.
8.0 REIMBURSABLE EXPENSES
8.1 Reimbursable expenses are expenditures for the Project made by the Landscape
Architect, its employees and consultants in the interest of the Project as stipulated
per the On -Call agreement.
9.0 EXCLUSIONS
Specifically excluded from the Landscape Architect's services are the following items,
which shall be provided by others if required:
9.1 Base data and information necessary for the execution of Landscape Architectural
services including but not limited to the following:
• Boundary and topographical surveys
• Locations of all existing utilities, easements, structures, paving, trees or other
pertinent site information
9.2 State, County Municipal and Project C.C.& R. requirements, guidelines, or other
relative information directly affecting the Landscape Architectural work to the
specific site.
9.3 Due to the unknown soils conditions under the existing stamped paving slated for
removal, import soil may be required, therefore Agronomy Soils Analysis shall not
be provided as part of this proposal.
Page 1 6
Landscape Architectural Proposal- Newport Blvd. between Hospital Rd. & Industrial Way,
Placentia Median between 1511 and 16th St. and West Newport Trailer Park Frontage Landscape
9.4 Work outside that of the Landscape Architect's expertise and scope of work. This
includes civil, mechanical, structural and electrical engineering services.
9.5 Additional services made necessary by contractor default.
9.6 All fees required for securing approval of agencies having jurisdiction over the
project, (i.e., Plan Check Fees). The fees must be paid directly to the agency from
the City. All processing of plans shall be by the City.
9.7 All inspections, out of office meetings, showroom or material yard meetings, or
selecting plant materials at nursery locations prior to shipping to site.
We trust that our understanding of the above scope of services meets your expectations and
appreciate the opportunity to be of continued service to the City of Newport Beach and look
forward to working together to complete another successful project.
Please sign and return to authorize BGB Design Group to proceed with the above work.
Respectfully Submitted,
Arthur Guy,
BGB Design Group
CA Lic #2214
Authorized by the City of Newport Beach:
M
Name:
Title:
Date:
Signature
Page 1 7
AMENDMENT NO. ONE TO
ON-CALL PROFESSIONAL SERVICES AGREEMENT
WITH BGB DESIGN GROUP, INC. FOR
ON-CALL LANDSCAPE ARCHITECTURE SERVICES
THIS AMENDMENT NO. ONE TO ON-CALL PROFESSIONAL SERVICES
AGREEMENT ("Amendment No. One") is made and entered into as of this 23rd day of
April, 2019 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("City"), and BGB DESIGN GROUP,
INC., a California corporation ("Consultant"), whose address is 3185 C1 Airway Avenue,
Costa Mesa, California 92626, and is made with reference to the following:
RECITALS
A. On August 25, 2017, City and Consultant entered into an On -Call Professional
Services Agreement ("Agreement") for Consultant to provide On -Call Landscape
Architecture Services ("Project").
B. Since entering into the Agreement, Consultant was asked to perform a higher
volume of Work than was originally anticipated.
C. The parties desire to enter into this Amendment No. One to reflect these additional
Services or Work not anticipated in the Agreement, to extend the term of the
Agreement to June 30, 2021 and to increase the total compensation and update
the Conflicts of Interest and Claims sections.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2021, unless terminated earlier as set forth herein."
2. COMPENSATION TO CONSULTANT
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "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 Two Hundred Fifty
Thousand Dollars and 00/100 ($250,000.00), 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."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. One,
BGB Design Group, Inc. Page 1
including all reimbursable items and subconsultant fees, in an amount not to exceed One
Hundred Thirty Thousand Dollars and 00/100 ($130,000.00).
3. CONFLICTS OF INTEREST
Section 25 shall be amended in its entirety and replaced with the following:
"25.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
25.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. 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."
4. CLAIMS
Section 27 shall be amended in its entirety and replaced with the following:
"27.1 Unless a shorter time is specified elsewhere in this Agreement, before
making its final request for payment under this Agreement, Consultant shall submit to
City, in writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27.2 To the extent that Consultant's claim is a "Claim" as defined in Public
Contract Code section 9204 or any successor statute thereto, the Parties agree to follow
the dispute resolution process set forth therein. Any part of such "Claim" remaining in
dispute after completion of the dispute resolution process provided for in Public Contract
Code section 9204 or any successor statute thereto shall be subject to the Government
Claims Act requirements requiring Consultant to file a claim in strict conformance with the
Government Claims Act. To the extent that Contractor/Consultant's claim is not a "Claim"
as defined in Public Contract Code section 9204 or any successor statute thereto,
Consultant shall be required to file such claim with the City in strict conformance with the
Government Claims Act (Government Code sections 900 et seq.)."
BGB Design Group, Inc. Page 2
5. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
BGB Design Group, Inc. Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
CITY OF NEWPORT BEACH,
a California municipal c rporation
Date:
r o
By. QBy.
.pae: Aaron C. Harp Q ` �('l Diane . ixon
City Attorney Mayor
ATTEST:
Date: , r
By:
Leilani I. Brown
City Clerk
L"P0 RNA®
CONSULTANT: BGB Design Group, Inc.,
a California corporation
Date:
Signed in Counterpart
Arthur D. Guy, III
President
Date:
By:
Signed in Counterpart
Robert Borthwick
Secretary
[END OF SIGNATURES]
BGB Design Group, Inc. Page 4
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: at ci
By:_ aLk I -
For: Aaron C. Harp W -� A A'(',)
City Attorney
ATTEST:
Date:
go
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Diane B
Mayor
Dixon
CONSULTANT: BGB Design Group, Inc.,
a California cor ration
Date:j
By:
Arthur . G
President
Date:
By:
R ert Borthwick
Secretary 0
[END OF SIGNATURES]
BGB Design Group, Inc. Page 4
Cn ON-CALL PROFESSIONAL SERVICES AGREEMENT
t-- WITH BGB DESIGN GROUP, INC. FOR
' ON-CALL LANDSCAPE ARCHITECTURE SERVICES
V
THIS ON-CALL PROFESSIONAL SERVICES AGREEMENT ("Agreement') is
made and entered into as of this 25th day of August, 2017 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("City"), and BGB DESIGN GROUP, INC., a California corporation ("Consultant'),
whose address is 3185 C1 Airway Avenue, Costa Mesa, California 92627, and is made
with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide On -Call Landscape Architecture
Services ("Project').
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. 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:
TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on July 31, 2019, unless terminated earlier as set forth herein.
SERVICES TO BE PERFORMED
2.1 Consultant shall perform the on-call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Upon written request from the Project Administrator as defined herein,
Consultant shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal'). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
2.1.3 The estimated number of hours and cost to complete the Services;
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall
diligently perform the duties in the approved Letter Proposal.
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services
shall be performed to completion in a diligent and timely manner. The failure by
Consultant to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal,
if any, or perform the Services in a diligent and timely manner may result in termination
of this Agreement by City.
3.2 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 within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein 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.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 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 Letter Proposal
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
One Hundred Twenty Thousand Dollars and 00/100 ($120,000.00), without prior
BGB Design Group, Inc. Page 2
written authorization from City. No billing rate changes shall be made during the term of
this Agreement without the prior written approval of City.
4.2 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) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement and the Letter Proposal or specifically approved
in writing in advance by City.
4.4 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 and the Letter Proposal.
5. PROJECT MANAGER
5.1 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 Arthur D. Guy, III 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.
5.2 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.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the City's Public Works Department. City's
Public Works Director or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
BGB Design Group, Inc. Page 3
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and 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, 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
9.1 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,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
BGB Design Group, Inc. Page 4
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 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,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims'), and which relate (directly or indirectly) to the
negligence, recklessness, or willful misconduct of the Consultant or 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.
9.3 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 attorneys' 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
10.1 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. No civil
service status or other right of employment shall accrue to Consultant or its employees.
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 of the Work 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.
10.2 Consultant agrees and acknowledges that no individual performing
Services or Work pursuant to this Agreement shall: work full-time for more than six (6)
months; work regular part-time service of at least an average of twenty (20) hours per
week for one year or longer; work nine hundred sixty (960) hours in any fiscal year; or
already be a CalPERS member.
BGB Design Group, Inc. Page 5
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator 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 orfor other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
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 orjoint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, 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 subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Consultant shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and City. Except as specifically authorized herein,
BGB Design Group, Inc. Page 6
the Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (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. Additionally, all material posted in cyberspace 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, including all logins
and password information to City upon prior written request.
17.2 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.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
17.4 CADD data delivered to City shall include the professional stamp of the
engineer or architect in charge of or responsible for the Work. City agrees that Consultant
shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the
modification or misuse by City, or anyone authorized by City, of CADD data; (b) the
decline of accuracy or readability of CADD data due to inappropriate storage conditions
or duration; or (c) any use by City, or anyone authorized by City, of CADD data for
additions to this Project, for the completion of this Project by others, or for any other
Project, excepting only such use as is authorized, in writing, by Consultant. By
acceptance of CADD data, City agrees to indemnify Consultant for damages and liability
resulting from the modification or misuse of such CADD data. All original drawings shall
be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a
CD, and should comply with the City's digital submission requirements for improvement
plans available from the City's Public Works Department. The City will provide Consultant
with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall
be transmitted to City in formats compatible with Microsoft Office and/or viewable with
Adobe Acrobat.
BGB Design Group, Inc. Page 7
17.5 All improvement and/or construction plans shall be prepared with indelible
waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six
inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to
City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting
("CADD") and Tagged Image File Format (.tiff) 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. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents the
Consultant's 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 Consultant or contractor bids or actual cost to City.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
20. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
21. RECORDS
Consultant shall keep records and invoices in connection with the Services 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
BGB Design Group, Inc. Page 8
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 designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is 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
25.1 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.
25.2 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
26.1 All notices, demands, requests or approvals, including any change in
mailing address, 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.
26.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Public Works Director
Public Works Department
City of Newport Beach
100 Civic Center Drive
BGB Design Group, Inc. Page 9
PO Box 1768
Newport Beach, CA 92658
26.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Arthur D. Guy, III
BGB Design Group, Inc.
3185 C1 Airway Avenue
Costa Mesa, CA 92627
27. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
28. TERMINATION
28.1 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.
28.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than 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 forwhich
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.
BGB Design Group, Inc. Page 10
29. PREVAILING WAGES
Pursuant to the applicable provisions of the Labor Code of the State of California,
not less than the general prevailing rate of per diem wages including legal holidays and
overtime Work for each craft or type of workman needed to execute the Work
contemplated under the Agreement shall be paid to all workmen employed on the Work
to be done according to the Agreement by the Consultant and any subcontractor. In
accordance with the California Labor Code (Sections 1770 et seq.), the Director of
Industrial Relations has ascertained the general prevailing rate of per diem wages in the
locality in which the Work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Agreement. A copy of said determination
is available by calling the prevailing wage hotline number (415) 703-4774, and requesting
one from the Department of Industrial Relations. The Contractor is required to obtain the
wage determinations from the Department of Industrial Relations and post at the job site
the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any
subcontractor under him/her to comply with all State of California labor laws, rules and
regulations and the parties agree that the City shall not be liable for any violation thereof.
30. STANDARD PROVISIONS
30.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
30.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
30.3 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.
30.4 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.
30.5 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.
30.6 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.
BGB Design Group, Inc. Page 11
30.7 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.
30.8 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.
30.9 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, State of California.
30.10 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 race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
30.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
30.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
BGB Design Group, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICI
Harp
City Attorney
ATTEST:
Date:
041
By: al�
�
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: gji^Itq
By: � C IL J4�
David . Kiff
City Manager
CONSULTANT: BGB Design Group, Inc.,
a California corporation
Signed in Counterpart
M
Arthur D. Guy, III
President
Signed in Counterpart
Bv:
Robert Borthwick
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
BGB Design Group, Inc. Page 13
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C. Harp
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
� 041
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
David A. Kiff
City Manager
CONSULTANT: BGB Design Group, Inc.,
a California cor oration
Date:
By:
Arthur D. Guy, III
President
Date: -67.1-'3-1-7
By.
Robert Borthwick
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rate:
Exhibit C - Insurance Requirements
BGB Design Group, Inc. Page 13
EXHIBIT A
SCOPE OF SERVICES
Consultant shall provide Landscape Architecture services, including conceptual
and final design of landscaping for City capital improvement and maintenance projects,
including streetscape, median, parks, open space and other public facilities. Services
shall include the following as necessary:
• Prepare conceptual design and architectural renderings;
• Provide public outreach services (i.e., town hall meetings, HOA meetings,
Council meetings, etc.);
• Prepare full land scape/ha rdscape/irrigation construction plans,
specifications, and estimates. Specifications may incorporate full City -standards "front
end" specifications, in addition to technical specifications;
• Prepare irrigation studies/plans;
• Incorporate water/energy savings design measures and value engineering
services;
• Provide bid support;
• Provide construction support and administration services;
• Prepare record drawings; and
• Other landscape architecture -related tasks, as necessary.
BGB Design Group, Inc. Page A-1
EXHIBIT B
SCHEDULE OF BILLING RATES
BGB DESIGN GROUP HOURLY RATE SCHEDULE
Principal
$170
Project Manager
$130
Landscape Architect
$130
Senior CAD Operator
$110
CAD Operator
$85
Administrative
$75
The City will not be billed overtime rates for BGB staff time.
REPROGRAPHICS
Bond Plot
$0.55 / s.f.
Color Bond Plot
$2.50 / s.f.
Mylar Plot
$2.50 / s.f.
There is no mileage reimbursement.
BGB Design Group, Inc. Page B-1
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of 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. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. 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.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of 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 each accident.
BGB Design Group, Inc. Page C-1
D. Professional Liability (Errors & Omissions) Insurance. 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) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees 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 from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence 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 and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance
kept on file with City at all tim
reserves the right to require
insurance policies, at any time.
. Current certification of insurance shall be
es during the term of this Agreement. City
complete, certified copies of all required
BGB Design Group, Inc. Page C-2
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in ,substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. 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. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
G. 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 Contract, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
H. Consultant's 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.
BGB Design Group, Inc. Page C-3
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 1/19/18 Dept./Contact Received From: Edwin
Date Completed: 2/1/18 Sent to: Edwin By: Jan/Alicia
Company/Person required to have certificate: BGB Design Group
Type of contract: Public Works
L GENERAL LIABILITY
N N/A
EFFECTIVE/EXPIRATION DATE: 12/6/17-12/6/18
❑ No
A.
INSURANCE COMPANY: Travelers Property Casualty Co. of America
N Yes
B.
AM BEST RATING (A-: VII or greater): A++: XV
❑ N/A
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
N Yes ❑ No
D.
LIMITS (Must be $1 M or greater): What is limit provided? 2M/4M
E.
ADDITIONAL INSURED ENDORSEMENT — please attach
® Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
❑ Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
❑ Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
N Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence' wording?
❑ Yes N No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY): N N/A
❑ Yes ❑ No
L.
NOTICE OF CANCELLATION: ❑ N/A
N Yes ❑ No
11. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 12/6/17-12/6/18
A. INSURANCE COMPANY: Travelers Indemnity Co of CT
B. AM BEST RATING (A-: VII or greater) A++: XV
C. ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
E LIMITS Waiver of Auto Insurance / Proof of coverage (f individual)
(What is limits provided?)
F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
lM
N/A
N Yes ❑ No
Haulers only):
N N/A
❑ Yes
❑ No
G. HIRED AND NON -OWNED AUTO ONLY:
❑ N/A
N Yes
❑ No
H. NOTICE OF CANCELLATION:
❑ N/A
N Yes
❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 12/6/17-12/6/18
A.
INSURANCE COMPANY: Travelers Property Casualty Co. of America
B.
AM BEST RATING (A-: VII or greater): A++: XV
C.
ADMITTED Company (Must be California Admitted):
® Yes
❑ No
D.
WORKERS' COMPENSATION LIMIT: Statutory
® Yes
❑ No
E.
EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) 1 M
F.
WAIVER OF SUBROGATION (To include): Is it included?
® Yes
❑ No
G.
SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A
[-]Yes
❑ No
H.
NOTICE OF CANCELLATION: ❑ N/A
® Yes
❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY EFF:11/13/17-11/13/18 CARRIER:TRAVELERS CASUALTY & SURETY CO AMERI
RATING: A++ ADMITTED LIMIT: 2M/2M ❑ N/A ® Yes ❑ No
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
2/1/18
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Need Risk Management approval to waive "Owned Auto Liability" requirement in contract 1/31/18 Risk
Management waived "Owned Auto Liability" due to vendor not owning any vehicles
Approved:
Risk Management
* Subject to the terms of the contract.
Date