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HomeMy WebLinkAboutC-3339(A) - PSA (Balboa Village Phase II Guidelines)PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of April, 2000, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and Planning and Urban Design Resources whose address is 446 Old Newport Boulevard, Suite 202, Newport Beach, California 92663, (hereinafter referred to as "Consultant'), 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 project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, Ronald L. Baers. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms of conditions provided 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 12th day of April 2000, and shall terminate on the 11th day of April 2001, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached hereto as Exhibit "A" and incorporated herein by reference. No rate changes shall be made during the term of 1 • this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Thirty -four thousand, Three hundred dollars ($34,300). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with Exhibit "A ". 3.4 City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 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 the 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. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 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, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an 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 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 details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. 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. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated Ronald Baers to be its Project Manager. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to 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. 3 0 0 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with Exhibit A. The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays that are 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. 8.1 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, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 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. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal A injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. 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. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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 Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in 5 9 0 its own judgment may be necessary for its proper protection and prosecution of the wo rk. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 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, shall be construed as an assignment of this Agreement. 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. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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. Consultant shall, at such time and in such form as the City may require, furnish reports concerning the status of services required under this Agreement. 5 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. Access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Blueprinting, CADD plotting, copying and other services through City's reproduction company for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. 18. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia Temple shall be considered the Project Administrator and shall have the authority act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 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. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate 7 right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. 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 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. B. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 24. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under 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: 1 • • City of Newport Beach Planning Department 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 Phone — (949) 644 -3200 Fax — (949) 644 -3350 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Ronald L. Baers Planning and Urban Design Resources 446 Old Newport Boulevard, Suite 202 Newport Beach, CA 92663 Phone — (949) 645 -1998 Fax — (949) 631 -1846 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. 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 D 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. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 30. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 31. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 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 A Municipal Corporation a0J�1— By: Robin Clauson Assistant Citv Attornev LaVonne Harkless City Clerk FAUsers\PLN\Shared\BPRRAD MIN\BaersContract.doc By: �e Homer Bludau City Manager for the City of Newport Beach CONSULTANT By: allw(ld- G& .1 10 RONALD L. BAERS Au,ALCP PLANNING AND URBAN DESIGN R E S O U R C E S 446 OLD NEWPORT BOULEVARD, SUITE 202 NEWPORT BEACH. CA. 92663 PHCNE "1 645 1998 r A x 1, 631 1846 March 28, 2000 Ms. Sharon Wood Assistant City Manager Community & Economic Development 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658 -8915 Dear Ms. Wood: • Colas rA Subject: Proposal for Balboa Village Design Guidelines Thank you for the opportunity to continue working with you on Balboa's revitalization program. Phase II, Design Guidelines, follows the completion of the Streetscape and Pedestrian Implementation Plan. This proposal identifies project goals, mehodology, work program and estimated fees and time schedule. PROJECT GOALS. 1. Retain the historic (eclectic) flavor of the oldest commercial district inNewport Beach, including its narrow streets and alleys, relationships to beach and bay, eclectic mixture of buildings, heritage sites and buildings, and mixture of activities (ground floor retail, upper level commercial, office and residential). 2. Guide revitalization of existing structures to enhance the historic (eclectic) flavor of the village while encouraging new economic activities which will make a positive contribution - entertainment, culture and art, retail, office, residential and visitor accommodations. 3. Guide new construction such that it is compatible with the village character. 4. Ensure compatible relationships in use and scale between village edges and adjacent residential uses. 5. Explore financial mechanisms which may provide incentives for private property owners /tenants to participate in Balboa Village's revitalization through the implementation of these design guidelines. 6. Formulate design guidelines, with the participation of potential users, that are clear, relevant, flexible and illustrated. METHODOLOGY The design guidelines will address the above goals in a clear and concise manner. To support this work, research is required to provide a solid foundation for the formulation of guidelines and their implementing mechanisms. It should cover the following areas: • • 1. Review examples of facade revitalization programs that have proven successful in accomplishing their goals in settings similar to Balboa Village. The review should provide comparisons of a range of approaches, enforcement strategies, public - private partnerships and specificity of design guidelines. 2. Interview participants in revitalization programs to gain their insights into problems and opportunities. 3. Review design guideline examples that illustrate various approaches to design review, flexibility and comprehensiveness. After reseach is completed, draft design guidelines will be developed, reviewed with potential users and City staff, modified and presented to City decision makers for implementation. WORK PROGRAM The work program is outlined in the following section along with an estimate of time and expected product. RESEARCH. Review Central Balboa Specific Plan design guidelines. Identify other examples where design guidelines have been employed in various ways to guide private property revitalization in a mixed use village environment. Possible ex- amples include Manhattan Beach, Hermosa Beach, Belmont Shores, Rancho Santa Fe, Claremont Village, Redlands, La Verne, Temecula, San Juan Capistrano and Orange. Research will be accomplished by interviews, site investigations, and will focus on types of guidelines, design review and implementation strategies. Product: Memorandum of Findings Time: 3 Weeks 2. DEVELOP DESIGN GUIDELINES This task includes the following steps: a. Define district and sub - district boundaries where guidelines may apply in differing degrees of specificity according to their impact on village character. Sub - districts may be defined that establish a village core, where the most significant character- istics of the historic flavor exist, village fringes which are less significant and therefore may have more flexibility in the appli- cation of guidelines, and district edges where it is important to address compatibility issues between the village and adjacent residences. b. Identify heritage sites and structures which are considered significant contributors to village character. City landmark listings will provide the primary source for this information. c. Identify background buildings or groups of buildings which are significant in their contribution to village streetscape. • d. Identify significant views of and within the village. e. Identify open spaces and their significance to village character. f. Prepare draft guidelines for the following design elements, considering their application to existing improvements and to new construction. Elements may include: 1. Building Height 2. Building Scale 3. Building Facades, Materials and Textures 4. Planting Design 5. Second Floor Facade Articulation 6. Color Palette 7. Roof Form /Parapet Silhouette 8. Architectural Details 9. Embellishments 10. Fences and Walls 11. Lighting 12. Public Utility Facilities 13. Pavement Surfaces g. Review draft guidelines with potential users and City staff. Assume two rounds of review sessions with users and staff. h. Revise draft guidelines and prepare draft manual. Product: Draft Design Guidelines Manual Time: 10 Weeks 3. IMPLEMENTATION Develop program recommendations for design review and updating design guidelines. Work with City staff to formulate en- forcement strategies, such as special district overlays, financial incentives, public - private partnership opportunities and others. Product: Memorandum on Implementation Stratgegies Time: 2 Weeks 4. PRESENTATION & MEETINGS Attend meetings with property owners /merchants, residents, ad- hoc committee (PROP) and City Council Study Sessions as approriate during the formulation of guidelines. Product: Meetings and Presentations Time: Assume two PROP meetings, one Study Session, and two meetings with BMOA, and two meetings with other organizations 0 FEE ESTIMATE FOR WORK PROGRAM Research Design Guidelines Implementation Meetings /Presentations Total Estimate (not to exceed) SCHEDULE OF COMPENSATION RATES 6,600.00 22,000.00 3,400.00 2,300.00 $34,300.00 Principal Planner /Designer $100.00 /Hr Planner /Designer $ 85.00 /Hr Graphics $ 55.00 /Hr Research $ 45.00 /Hr SCHEDULE I. Research 3 Weeks II. Develop Design Guidelines 10 Weeks III. Implementation 2 Weeks IV. Presentations & Meetings 2 Weeks Progress invoices will be submitted monthly, based on actual time spent on the project. Progress payments to be made within 30 days. City to provide all base maps and photo- reproduction services as required. It is understood that compensation estimates may require revision according to modifications to the work program. Please call me at any time to discuss the work program and any other questions you have. I look forward to working with you and your staff. Sincerely yours, Ronald L. Baers, A.I.A., A.I.C.P. ACCEPTED: Date M