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HomeMy WebLinkAboutC-3770 - PSA for the Development of Performance Criteria for Residential Development in the Airport Business AreaSECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into thisoth day of February 2007, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City ") and ROMA Design Group, whose address is 1527 Stockton Street, San Francisco, CA 94133 (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. City and Consult ant entered into a Professional Services Agreement for the development of performance criteria for residential development in the Airport Business Area on April 26, 2005. B. Th a Agreement was amended on March 14, 2006. C. The Parties desire to amend the agreement to provide additional time to complete the work and to provide for ongoing services. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Paragraph 1. Term is amended to provide that the Agreement may be terminated by either party with thirty (30) days notice. 2. SERVICES TO BE PERFORMED Paragraph 2. Services to be Performed is amended to provide that, in addition to the services described in the Agreement and its Exhibit "A," Consultant shall provide City with assistance, as requested, in reviewing applications for Conceptual Design Plans and other regulatory plans in connection with residential development in the Airport Area. 3. COMPENSATION TO CONSULTANT Paragraph 4. Compensation to Consultant is amended to provide that compensation for assistance in reviewing applications in connection with residential development in the Airport Area shall be as provided in Section 4.3 of the Agreement for "Extra Work," except that the Schedule of Billing Rates shall be as set forth in Exhibit "A" to this Second Amendment. 4. NO AMENDMENTS TO REMAINDER OF AGREEMENT All other provisions of the Agreement shall remain in force and effect in their original form. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. CITY OF NEWPORT BEACH A Municipal Corporation go Steve Rosansky Mayor ATT LaVonne Harkless City Clerk 2 CONSULTANT ROMA Design Gloup Jim ms Prirtoi6al I WWW" EXHIBIT A 2007 HOURLY RATE SCHEDULE FOR PROFESSIONAL SERVICES Principal $160- 275.00 Project Manager $145- 200.00 Project Architect /Designer $145- 200.00 Urban Designer /Site Planner $90- 160.00 Architect $90- 160.00 Landscape Architect $90- 160.00 CADD Operator/Technical Support $65- 125.00 Graphic Designer $65- 125.00 Word Processor /Support $65- 125.00 Rana Lkugn Graq - 1;?; Slorkton S1rea • .San Fmidsro, Cali4vnia 94133 1'Lf.r4tjj616- 99()r) • FAX '4t51-,88 -8-7z$ • • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT ,-3 b gicc - C;�: 0 FU 7 7001 Agenda Item No. February 27, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Sharon Wood, Assistant City Manager 949 -644 -3222, swood @city.newport- beach.ca.us C` .3 7 7 0 SUBJECT: Amendment to Professional Services Agreement with ROMA Design Group Approve and authorize the Mayor and City Clerk to execute the amendment to the agreement. The City Council approved a Professional Services Agreement with ROMA Design Group to prepare performance criteria for residential development in the Airport Area on April 26, 2005. The original Agreement established a termination date of December 31, 2005, which was •extended to February 28, 2007 by City Council action on March 14, 2006. ROMA provided significant assistance to the City in developing policies regarding residential development in the Airport Area that were included in the new General Plan Land Use Element. Because of the length of the General Plan update process, and the City's need to focus on and resolve General Plan policy issues before engaging ROMA in discussions about specific performance criteria, it was not possible to complete the work on the originally intended schedule. The General Plan /LCP Implementation Committee and staff now wish to use the remainder of ROMA's contract amount of $29,923 to develop a public infrastructure plan for mixed use development in the Airport Area, which will be used to develop a development impact fee for the area. The Committee and staff also anticipate using ROMA as a resource to assist with City review of conceptual design and other regulatory plans required for mixed use development in the Airport Area. This work will be done on a time and materials basis, and fees will be reimbursed by development applicants. Staff is recommending that the term of the agreement be revised to provide for cancellation with 30 days notice to allow for completion of the fee study and ongoing assistance with development applications. Submitted by: Sharon Wood • Assistant City Manager 0 • SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this _ day of February 2007, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City') and ROMA Design Group, whose address is 1527 Stockton Street, San Francisco, CA 94133 (hereinafter referred to as "Consultant"), is made with reference to the following: RECITALS A. City and Consult ant entered into a Professional Services Agreement for the development of performance criteria for residential development in the Airport Business Area on April 26, 2005. B. Th a Agreement was amended on March 14, 2006. C. The Parties desire to amend the agreement to provide additional time to complete the work and to provide for ongoing services. • NOW, THEREFORE, it is mutually agreed by and between the • undersigned parties as follows: TERM Paragraph 1. Term is amended to provide that the Agreement may be terminated by either party with thirty (30) days notice. 2. SERVICES TO BE PERFORMED Paragraph 2. Services to be Performed is amended to provide that, in addition to the services described in the Agreement and its Exhibit "A," Consultant shall provide City with assistance, as requested, in reviewing applications for Conceptual Design Plans and other regulatory plans in connection with residential development in the Airport Area. 3. COMPENSATION TO CONSULTANT Paragraph 4. Compensation to Consultant is amended to provide that compensation for assistance in reviewing applications in connection with residential development in the Airport Area shall be as provided in Section 4.3 of the Agreement for "Extra Work," except that the Schedule of Billing Rates shall be as set forth in Exhibit "A" to this Second Amendment. • E 0 r1 4. NO AMENDMENTS TO REMAINDER OF AGREEMENT All other provisions of the Agreement shall remain in force and effect in their original form. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. CITY OF NEWPORT BEACH A Municipal Corporation By: Steve Rosansky Mayor ATTEST: LaVonne Harkless • City Clerk • 01 CONSULTANT ROMA Design Group Jim Adams Principal i 02/21/07 WED 11:52 FAX 415 78728 RONA DESIGN • Exhibit A ROMA • HOURU RATE SCHEDULE FOR PROFESSIONAL SERVICES 2007 Principal $160- 285.00 Project Manager $145- 200.00 Project Archirect/Designer $145- 200.00 Urban Designer /Site Planner $90- 160.00 Architect $90- 160.00 Landscape Architect $90- 160.00 CADD Operator/Technical Support $70- 130.00 Graphic Designer $70- 130.00 Word Processor /Support $70- 130.00 ANNUAL RATE ADJUSTMENTS: The above rates shall remain in effect for the calendar year indi- cated. 'Ihereaftea the rates may be subject to annual adjustment. METHOD OF PAYMENT: Professional services are billed monthly and payment is due 30 days • following date of invoice. Invoices unpaid after 30 days are subject to a service charge of one and one- half percent per month. ROMA reserves the right to suspend work on this project if payment is not received within 45 days from invoice date. REIMBURSABLE EXPENSE.• Actual expenditures for the Project are reimbursable at cost plus ten percent for coordination and processing, and will be billed in addition to professional service fans. Examples of reimbursable expense are transportation and living expenses while traveling in connection with the Project, long distance telephone calls, reproduction costs, postage and photography. REIMBURSABLE CONSULTANTS: Professional service fees and reimbursable expense of autho- rized consultants on the Project will be billed at cost plus ten percent for coordination and processing. LIMITATION OF LIABILITY: In authorizing ROMA to proceed on work based upon the above professional rate schedule, the Owner agrees to limit ROMAs liability to the Owner and all construc- tion contractors and subcontractors (if any) on the Project due to ROMM professional negligent acts, errors or omissions, such that the total aggregate liability of ROMA to all those named above shall not exceed $50,000 or the total fee for services rendered on this Project, whichever is greater_ It is under- stood that the limitation of liability has no aff= on the comprehensive liability insurance nor does it • apply to any third party claims against the professional liability insurance. LI. FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this ay of March 2006, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City") and ROMA Design Group, whose address is 1527 Stockton Street, San Francisco, CA 94133 (hereinafter referred to as "Consultant"), is made with reference to the following: RECITALS A. City and Consultant entered into a Professional Services Agreement for the development of performance criteria for residential development in the Airport Business Area on April 26, 2005. B. The Parties desire to amend the agreement to provide additional time to complete the work with adequate coordination with the City's update of its General Plan. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Paragraph1. Term is amended to provide that the Agreement shall terminate on the 28th day of February, 2007, unless terminated earlier as set forth in the original Agreement. 2. NO AMENDMENTS TO REMAINDER OF AGREEMENT All other provisions of the Agreement shall remain in force and effect in their original form. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. CITY OF NEWPORT BE A Munipoat"69rporation ebb Mayor ATT T. La onne Harkless City Clerk 1 CONSULTANT ROMA DesiGmLi 0- 37io IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 on the date first above written. APP OVED AS T FORM: ity Attorney for the City of Newport Beach ATTEST: No Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By:�- ity ManagXNewport for the City Beach FORN%f ROMA Design Group r By: Financial Officer Attachment A: Final Invoice Nos. 090104 & 090902 E.Y TH CITY COUPSCiL CRY CY k: LATPORT BEACH FMK 14 ;T;4y� CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 8 March 14. 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Sharon Wood, Assistant City Manager 949 - 644 -3222, swood @city.newport- beach.ca.us SUBJECT: Amendment to Extend Term of Professional Services Agreement with ROMA Design Group RECOMMENDATION: Approve and authorize Mayor and City Clerk to execute amendment to agreement. DISCUSSION: The City Council approved a Professional Services Agreement with ROMA Design Group to prepare performance criteria for residential development in the Airport Area on April 26, 2005. The Agreement established a termination date of December 31, 2005. ROMA has provided significant assistance to the City in developing policies regarding residential development in the Airport Area in the Land Use Element drafted as part of the General Plan update. Because of the length of the General Plan update process, and the City's need to focus on and resolve General Plan policy issues before engaging ROMA in discussions about specific performance criteria, it has not been possible to complete the work on the originally intended schedule. Staff and EIP Associates, our General Plan consultant, have found ROMA's input extremely valuable in developing the draft Land Use Element, and believe it is important for ROMA to complete their more detailed design and regulatory work. In the event that this work cannot be completed until after voter approval of the General Plan update in November, staff is recommending that the term of the agreement be extended to February 28, 2007. Sub itted by: Sharon Wood Assistant City Manager Attachment: First Amendment to Professional Services Agreement • • FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this _ day of March 2006, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as 'City") and ROMA Design Group, whose address is 1527 Stockton Street, San Francisco, CA 94133 (hereinafter referred to as "Consultant "), is made with reference to the following: I[ZX43l1r-W19 A. City and Consultant entered into a Professional Services Agreement for the development of performance criteria for residential development in the Airport Business Area on April 26, 2005. B. The Parties desire to amend the agreement to provide additional time to complete the work with adequate coordination with the City's update of its General Plan. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Paragraph1. Term is amended to provide that the Agreement shall terminate on the 28'" day of February, 2007, unless terminated earlier as set forth in the original Agreement. 2. NO AMENDMENTS TO REMAINDER OF AGREEMENT All other provisions of the Agreement shall remain in force and effect in their original form. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. CITY OF NEWPORT BEACH A Municipal Corporation Don Webb Mayor ATTEST: LaVonne Harkless City Clerk 1 CONSULTANT EIP Associates, Inc. In Jim Adams Principal 7 PROFESSIONAL SERVICES AGREEMENT WITH ROMA Design Group y� THIS AGREEMENT is made and entered into as of this ab: day of 2005 by and between the CITY OF NEWPORT BEACH, a municipal cor oration ( "City"), and ROMA Design Group, a California corporation, whose address is 1527 Stockton Street, San Francisco, California, 94133 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to develop performance criteria for residential development in the Airport Business Area ( "Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal members of Consultant for purposes of Project shall be Jim Adams and Boris Dramov. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the 27th day of April, 2005, and shall terminate on the 31st day of December, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached as Exhibit "A" and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE The Consultant acknowledges the importance to the City of the City's project schedule and agrees to put forth reasonable efforts in performing the services with due diligence under this Agreement in a manner consistent with that schedule, as provided in Exhibit "A" hereto. The City understands, however, that the Consultant's performance must be governed by sound professional practices. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit "B" and incorporated herein by reference. In no event shall Consultant's compensation exceed Eighty -Eight Thousand, Nine Hundred Sixty Dollars and No Cents ($88,960.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 0 0 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work 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 set forth in Exhibit B. 6. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Jim Adams to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit "A" or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Sharon Wood shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized 3 representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to 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. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. , 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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, 2 • • without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, „ Claims n ), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 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 5 in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Reauirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, 0 -• • employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coveraae. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000) per claim. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) days written notice has been received by City. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. H. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further DI compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of 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 City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its 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. 21. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to 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 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 under this Agreement. 22. 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 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 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 paragraph is intended to limit City's rights under any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such 10 persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Sharon Wood Assistant City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3222 Fax (949) 644 -3020 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Jim Adams ROMA Design Group 1527 Stockton Street San Francisco, CA 94113 (415) 616 -9900 FAX (415) 788 -8728 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the 11 • • steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all applicable statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 12 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 33. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: aron C. Harp,,— / -A fc arp,Afc A LaVonne Harkless CITY Clerk Attachments: CITY OF NEWPORT BEACH A Municipal Corporation/" By: "Steven Bromb Mk or for the City of Ne ort Beach ROMA DESIGN GROUP A Cali rnia Corporatio Jim ams, PrI cipal Exhibit A - Scope of Services Exhibit B — Schedule of Billing Rates 13 0 April 18, 2005 ROMA Ms. Leslie Daigle, Council Member Mr. Homer Bludau, City Manager Ms. Sharon Wood, Assistant City Manager City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 0 Exhibit A Subject: City of Newport Beach Airport Business Area, Performance Criteria Proposal for Services (Revised) Dear Ms. Daigle, Mr. Bludau and Ms. Wood: ROMA Design Group is pleased to respond to your request for a proposal to prepare performance criteria for new residential development in the City's Airport Business Area. The relative strength of the housing market is an issue that confronts many California cities and that poses particular challenges in protecting viable non - residential uses, avoiding conflicts between new residential and existing commercial uses, and insuring that new residents enjoy a quality of life comparable to that provided by traditional neighborhoods. We have recently undertaken similar studies in Santa Monica, Salinas and San Ramon. In our telephone conferences on March 23rd and April 15th, we understood that the City has two needs: (1) criteria to guide the Planning Commission's evaluation of applications for General Plan amendments for individual projects, and (2) criteria to be incorporated into the Zoning Ordinance following adoption of a new General Plan in November 2006. After discussion, we determined that preparation of the Zoning Ordinance provisions should await completion of the new General Plan, when experience with the Planning Commission criteria will inform the pernanent regulations, and once the ultimate land use designation for the area is established. Thus, this proposal addresses the Planning Commission criteria only. We will be pleased to submit a proposal for preparation of the zoning amendment criteria at a later date. The performance criteria should be crafted to respond to the quantity, scale and location of residential development anticipated. In the first two tasks, we propose to document our understanding of a build -out scenario which will be helpful in addressing locational issues, the need for off -site services and amenities (if individual developments are too small to provide them on- site), and development standards that are appropriate to the anticipated building types. This analysis will build on data already completed for the General Plan Rona Dcslgn Group • 1527.Slorktol Street • San Francisco, California 94W TEL (415)616 -9900 • FAX (415,)788-8728 0 ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 2 0 process, and we will coordinate with those consultants in the preparation of this work. The build -out scenario, and the analysis of individual opportunity sites, will help us to develop recommended performance criteria for use by the Planning Commission in evaluating applications for amendments. More specifically, we see the following sequence of tasks: Task 1: Research and Stakeholder Interviews The City and /or the General Plan consultant will supply ROMA with base information, including the existing General Plan and Zoning Ordinance, base maps showing parcels and ownerships, aerial photos of existing development, etc. We will first meet with the General Plan consultants and City staff, as appropriate, to review in greater detail existing information, to identify all potential sites for residential development (including residential mixed use), and to identify the opportunity sites that will be the subject of "workouts ", as defined below. The emphasis will be on locational issues that may preclude or favor residential development, such as airport noise, incompatible uses or proximity to services and the potential of sites to provide amenities and to contribute to an overall sense of neighborhood in the area. It is anticipated that candidate sites will be limited to Koll Center, Brookfield Homes, World Premiere, Commerce Plaza and the Campus Tract or portions thereof and that they will be a representative sample of the range of types of residential (or residential mixed use) development anticipated. Also in this task, we will interview key stakeholders over the course of two days. Such stakeholders could include public officials and staff, property owners and prospective residential developers. We will combine the information gathered from the General Plan consultants, staff and stakeholders and summarize it in mapped and written form. We will review it with staff to identify issues that the performance criteria must address. Deliverable: Constraints and Opportunities Map and supporting memorandum. Task 2: Workout Scenario Using the information gathered in Task 1, we will prepare what we call a "workout scenario" or our best estimate of the way the Airport Business Area might develop. For the selected opportunity sites, we will prepare sketch development plans of each (at 1 " =50' 0 ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 3 0 or 1" =100') to determine the likely scale and configuration of development. The workout plans will be accompanied by takeoffs of unit counts, non - residential square footage (if any), as well as selected statistics on building intensity, height, etc. We will then apply the conclusions to all potential development sites (either graphically or numerically) for two purposes: (1) to confirm the General Plan's assumptions, and (2) to inform the development of locational criteria. We will review the workout plans and overall scenario with staff to identify additional issues that the performance criteria must address, such as circulation, linkages, open space, site layout, etc. All work will coordinated with the City's General Plan consultant to ensure consistency and inforniation exchange. Deliverable: fl'orkout Plans and Scenario, with supporting text (camera -ready and electronic version). Task 3: Administrative Draft Performance Criteria ROMA will draft performance criteria in text and graphic form. Graphics and diagrams will be in preliminary sketch form for review purposes. If appropriate, we will include photographs of built projects to illustrate likely building types as well as desirable characteristics. Staff will review and comment on the administrative draft, and will prepare a single set of coordinated comments. Deliverable: Up to,Tve copies plus electronic form (bVw•d or PDF), Task 4: Final Draft Performance Criteria Based on staff comments, ROMA will revise the text and finalize the graphics. Deliverable: Up to 10 copies plus electronic form (Word or PDF). Task 5: Presentations ROMA will prepare one PowerPoint presentation summarizing the final draft performance criteria. We have budgeted for presentations on two separate days, which may be to the Planning Commission, City Council or both. Deliverable: PowerPoint in PDF, PowerPoint Show (PPS) or HTML format for posting on City's website and/or printing by City. 0 0 ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 4 Task 6. Final Performance Criteria Based on direction of the Planning Commission and City Council, we will revise the text and graphics once. Our proposal assumes that the revisions will be minor in nature and will not require additional research, analysis or illustrations. Deliverable: Final performance criteria in electronic form (Word or PDF). Schedule Task 1: 2 weeks Task 2: 3 weeks Task 3: 3 weeks (plus estimated 2 weeks for staff review) Task 4: 2 weeks Task 5: As required for scheduling and packet distribution (assume 4 weeks) Task 6: 2 weeks following second meeting Total: 18 weeks from notice to proceed Staffing Walter Rask, Principal with ROMA Design Group, will be the day -to -day project manager. As head of planning for downtown San Diego, Mr. Rask had eight years of experience drafting and implementing development regulations. At ROMA, he has managed similar regulatory assignments for cities including Santa Monica, Salinas and San Ramon California. Jim Adams, Principal, will be the managing principal overseeing the production of the work, and Boris Dramov, President of ROMA Design Group, will act as the design principal, providing his expertise in the structure and content of the performance criteria. Other ROMA professional staff will be assigned to the production of specific task deliverables. Fee As broken down in the attached table, the fee for these services is estimated at $88,960, inclusive of all direct costs. ROMA will not exceed this amount, without written authorization from the City of Newport Beach. 0 ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 5 We look forward to working with you on this important assignment. Sincerely, ROMA Design Group Jim Adams, AIA Managing Principal cc: Elwood C. Tescher, EIP Associates City of Newport Beach Airport Area, Performance Criteria Fee Proposal April 18, 2005 M Fee Breakdown Travel (OAK to SNA) Principal, Ar chit ect/? i Mileage, Managing, Urban Principal I Urban 'Technical I Subtotal Car Parking, Subtotal Task Principal Designer in Charge: Designer Support Labor — P. - - Airfare Tolls Hotel Travel Total W.Rask J.Adams ;B.Dramov; $ 160 $ 220. $ 240 $ 145 `. $ 75 I !Research and Stakeholder Interviews 48 ( 16 8 24 $ 14,920 $ 660 $ 160 S 180 $1,000 $ 15,920 2 Workout Scenario 16 40 8 80 , 40 j $ 27,880 $ 440 $ 80 $ 90 $ 610 $ 28,490 3 Administrative Draft Performance Criteria 40 8 4 — 1 , _ 80 $ 15,120 $ _ $ 15,120 4 IFinal Draft Performance Criteria 8 4 2 16 I 16 �$ 6,160 $ - $ 6,160 ,Presentations =160 $ 180 $ 350 $1,570 $ 14,930 5 32 32 8 4 2 16 ; $ 13,360 16 $ 3,840 $ 880_ 6 (Final Performance Criteria i $ $ 3,840 Subtotal Hours 1521 104. 24 96 I 192 f i j Subtotal Labor/Travel $ 24,320 $22,880 $ 5,760 1 $ 13,920.1 $ 14,400 1 $ 81,280 $1,980 $ 400 $ 450 $ 350 $3,180 $ 84,460 OrTO hr Reimbursables (printing, telephone, etc.) 4,500 AL M 0442.8/05 TL'E 15:09 FAX 415 788 8728 ROMA HOURLY RATE SCHEDULE FOR PROFESSIONAL SERVICES ROMA DESIGN Principal Project Manager Project Archicect/Designer Urban Designer /Sire Planner Architect Landscape Architect CADD Operator /Technical Support Graphic Designer Word Processor /Support 2005 $160- 260.00 $145- 170.00 $145- 170 -00 $90- 150.00 $90- 150.00 $90- 150.00 $65- 115.00 $65- 115 -00 $65- 115.00 Exhibit B ANNUAL RATE ADJUSTMENTS: The above races shall remain in effect for the calendar year indi- cared. Thereafter, the rates may be subject to annual adjustment. METHOD OF PAYMENT: Professional scrvices arc billed monthly and payment is due 30 days following date of invoice. Invoices unpaid after 30 days arc subject to a service charge of one and one - half percent per month. ROMA reserves the right to suspend work on this project if payment is not received within 45 days from invoice date. REIMBURSABLE EXPENSE: Actual expenditures for the Project are reimbursable at cost plus ten percent for coordination and processing, and will be billed in addition to professional service fees. Examples of reimbursable expense are transportation and living expenses while traveling in connection wirh chc Project, long distance telephone calls, reproduction costs, postage and photography. REIMBURSABLE CONSULTANTS: Professional service fees and reimbursable expense of autho- rized consultants on the Project will be billed at cost plus ten percent for coordination and processing. LIMITATION OF LIABILITY: In authorizing ROMA to proceed on work based upon the above professional rate schedule, the Owner agrees to limit ROMA's liability to the Owncr and all construc- tion eonxraetors and subcontractors (if any) on the Project due cc ROMA's professional negligent acts, errors or omissions, such chat the coral aggrcgacc liability of ROMA to all those named above shall not exceed $50,000 or the total fee for scrvices rendered on this Project, whichever is greater. Ir is understood that the limitation of liability has no affect on the comprehensive liability insurance nor does it apply to any third party claims against the professional liability insurance. E, 2005 (S/0-dX5) CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 21 April 26, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Sharon Wood, Assistant City Manager 644 -3222, swood @city.newport- beach.ca.us SUBJECT: Professional Services Agreement with ROMA Design Group to Prepare Performance Criteria for Evaluating Residential Development Projects in the Airport Area, and Budget Amendment Transferring $88,960 from Unappropriated General Fund Reserve ISSUE: Should the City establish performance criteria to assist the Planning Commission and City Council in the review of applications for residential development in the Airport Area? RECOMMENDATIONS: 1. Approve the attached Professional Services Agreement with ROMA Design Group to prepare performance criteria, at a fee not to exceed $88,960; and 2. Approve a budget amendment transferring $88,960 from Unappropriated General Fund Reserve to Planning Account 2710 -8080 Services — Professional & Technical; and 3. Direct staff to seek reimbursement for project expenses from the Orange County Development Agency's redevelopment funds. DISCUSSION: Newport Beach has received its first application to allow residential development in the Airport Area (General Plan and Planned Community amendment requests by Brookfield Homes to allow 86 units at 1301 Quail Street), and staff has been contacted by developers who are exploring the possibility of residential development on other sites. Since residential development in the Airport Area has not been contemplated until the Professional SerOS Agreement with ROMA April 26, 2005 Page 2 recent work on the General Plan update, the City has no policies, standards or regulations against which to evaluate individual applications. Council Member Daigle has worked with staff and ROMA Design Group, an urban planning and design firm in San Francisco, on a scope of services to develop criteria that would assist the Commission and Council with evaluating these individual applications. ROMA's work could also be the basis for General Plan policies and future zoning provisions, if the result of the General Plan update is to provide for residential development in the Airport Area. ROMA proposes to accomplish the job through these tasks: • Research and stakeholder interviews to identify potential sites and types of residential development; • "Workout scenarios" on potential sites to determine the likely scale and configuration of development and the issues that need to be addressed in the performance criteria; • Draft performance criteria; and • Presentations to Planning Commission and City Council. ROMA anticipates the project will take 18 weeks, and the fee will not exceed $88,960. Council Policy F -14 requires that contracts for services over $30,000, or for services that were not included in the budget, be approved by the City Council. This policy also suggests that competitive bids should be obtained whenever possible. Issuing a request for proposals (RFP) might result in proposals with a different cost than ROMA's, but there is no requirement for professional services contracts to be awarded on the basis of cost versus responsiveness to the City's needs. An RFP process might also produce proposals with different ideas. However, this process would take approximately 60 days, and could result in the City not having performance criteria by the time the Brookfield Homes application is considered by the Commission and Council. Finally, ROMA has spent time with Council Member Daigle, staff and our General Plan consultant, and understands the issues the City needs to address. Funding Availability: This project was not included in the 2004 -05 budget. Council Member Daigle and staff have been discussing a number of amendments to the Memorandum of Agreement with the County of Orange regarding use of County redevelopment funds in the City of Newport Beach. The draft amendment now being discussed includes "land use planning and related studies within and nearby but benefiting the Project Area" as an additional purpose for redevelopment funds. This agreement is likely to be considered by the City Council and Board of Supervisors in May. Given the time sensitivity of the performance criteria project, staff is suggesting that the City Council approve a budget 0 Professional Serves Agreement with ROMA amendment for City funding of the project available to reimburse the City. Sufficient General Fund Reserve. Environmental Review: April 26, 2005 Page 3 until such time as redevelopment funds are funds are available in the Unappropriated The initiation of a planning study is not a project that requires environmental review. This review will be done at the time the Planning Commission and City Council consider proposed performance criteria. Submitted by: Sfiaron Assistant City Manager Attachments: 1. Professional Services Agreement 2. Budget Amendment 0 0 PROFESSIONAL SERVICES AGREEMENT WITH ROMA Design Group THIS AGREEMENT is made and entered into as of this day of 2005 by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and ROMA Design Group, a California corporation whose address is 1527 Stockton Street, San Francisco, California, 94133 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to develop performance criteria for residential development in the Airport Business Area ( "Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal members of Consultant for purposes of Project shall beJim Adams and Boris Dramov. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the 27th day of April, 2005, and shall terminate on the 31st day of December, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached as Exhibit "A" and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 0 0 3. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit "A.° The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services 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 "A, Fee Proposal" and incorporated herein by reference. In no event shall Consultant's compensation exceed Eighty -eight Thousand, Nine Hundred Sixty Dollars ($88,960) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 3.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 3.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: 2 0 0 A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.3 Consultant shall not receive any compensation for Extra Work 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 set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Jim Adams to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit "A" or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Sharon Wood shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 3 0 0 7. CITY'S RESPONSIBILITIES In order 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. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work performed or 12 a 0 services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 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. 5 0 0 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 0 0 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than two million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 7 E • V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) days written notice has been received by City. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. H. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further N 18. 19. 20. 0 0 compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of 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 City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and 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. 0 0 0 21. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to 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 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 under this Agreement. 22. 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 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 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 paragraph is intended to limit City's rights under any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially 10 0 0 affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Sharon Wood Assistant City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3222 Fax 644 -3020 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Jim Adams ROMA Design Group 1527 Stockton Street ( 415) 616 -9900 FAX 788 -8728 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the 11 0 0 steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all 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, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govem. 12 0 0 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 33. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Robin Clauson, Assistant City Attorney for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH A Municipal Corporation By: Mayor for the City of Newport Beach CONSULTANT By: By: LaVonne Harkless CITY Clerk Attachment: Exhibit A — Scope of Services 13 April 18, 2005 ROMA Ms. Leslie Daigle, Council Member Mr. Homer Bludau, City Manager Ms. Sharon Wood, Assistant City Manager City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 • Exhibit A Subject: City of Newport Beach Airport Business Area, Performance Criteria Proposal for Services (Revised) Dear Ms. Daigle, Mr. Bludau and Ms. Wood: ROMA Design Group is pleased to respond to your request for a proposal to prepare performance criteria for new residential development in the City's Airport Business Area. The relative strength of the housing market is an issue that confronts many California cities and that poses particular challenges in protecting viable non - residential uses, avoiding conflicts between new residential and existing commercial uses, and insuring that new residents enjoy a quality of life comparable to that provided by traditional neighborhoods. We have recently undertaken similar studies in Santa Monica, Salinas and San Ramon. In our telephone conferences on March 23rd and April 15th, we understood that the City has two needs: (1) criteria to guide the Planning Commission's evaluation of applications for General Plan amendments for individual projects, and (2) criteria to be incorporated into the Zoning Ordinance following adoption of a new General Plan in November 2006. After discussion, we determined that preparation of the Zoning Ordinance provisions should await completion of the new General Plan, when experience with the Planning Commission criteria will inform the permanent regulations, and once the ultimate land use designation for the area is established. Thus, this proposal addresses the Planning Commission criteria only. We will be pleased to submit a proposal for preparation of the zoning amendment criteria at a later date. The performance criteria should be crafted to respond to the quantity, scale and location of residential development anticipated. In the first two tasks, we propose to document our understanding of a build -out scenario which will be helpful in addressing locational issues, the need for off -site services and amenities (if individual developments are too small to provide them on- site), and development standards that are appropriate to the anticipated building types. This analysis will build on data already completed for the General Plan Roma Design Croup • 1527.5tockton Street • .San Francisco, California 94133 TEL (4i5)6t6 -99oo • FAX (415,)788 -8728 0 0 ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 2 process, and we will coordinate with those consultants in the preparation of this work. The build -out scenario, and the analysis of individual opportunity sites, will help us to develop recommended performance criteria for use by the Planning Commission in evaluating applications for amendments. More specifically, we see the following sequence of tasks: Task 1: Research and Stakeholder Interviews The City and /or the General Plan consultant will supply ROMA with base information, including the existing General Plan and Zoning Ordinance, base maps showing parcels and ownerships, aerial photos of existing development, etc. We will first meet with the General Plan consultants and City staff, as appropriate, to review in greater detail existing information, to identify all potential sites for residential development (including residential mixed use), and to identify the opportunity sites that will be the subject of "workouts ", as defined below. The emphasis will be on locational issues that may preclude or favor residential development, such as airport noise, incompatible uses or proximity to services and the potential of sites to provide amenities and to contribute to an overall sense of neighborhood in the area. It is anticipated that candidate sites will be limited to Koll Center, Brookfield Homes, World Premiere, Commerce Plaza and the Campus Tract or portions thereof and that they will be a representative sample of the range of types of residential (or residential mixed use) development anticipated. Also in this task, we will interview key stakeholders over the course of two days. Such stakeholders could include public officials and staff, property owners and prospective residential developers. We will combine the information gathered from the General Plan consultants, staff and stakeholders and summarize it in mapped and written form. We will review it with staff to identify issues that the performance criteria must address. Deliverable: Constraints and Opportunities Map and supporting memorandum. Task 2: Workout Scenario Using the information gathered in Task 1, we will prepare what we call a "workout scenario" or our best estimate of the way the Airport Business Area might develop. For the selected opportunity sites, we will prepare sketch development plans of each (at 1 " =50' 0 0 ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 3 or F =100') to determine the likely scale and configuration of development. The workout plans will be accompanied by takeoffs of unit counts, non - residential square footage (if any), as well as selected statistics on building intensity, height, etc. We will then apply the conclusions to all potential development sites (either graphically or numerically) for two purposes: (1) to confirm the General Plan's assumptions, and (2) to inform the development of locational criteria. We will review the workout plans and overall scenario with staff to identify additional issues that the performance criteria must address, such as circulation, linkages, open space, site layout, etc. All work will coordinated with the City's General Plan consultant to ensure consistency and information exchange. Deliverable: Workout Plans and Scenario, with supporting text (camera -ready and electronic version). Task 3: Administrative Draft Performance Criteria ROMA will draft performance criteria in text and graphic form. Graphics and diagrams will be in preliminary sketch form for review purposes. If appropriate, we will include photographs of built projects to illustrate likely building types as well as desirable characteristics. Staff will review and comment on the administrative draft, and will prepare a single set of coordinated comments. Deliverable: Up lo five copies plus electronic form (Word or PDF). Task 4. Final Draft Performance Criteria Based on staff comments, ROMA will revise the text and finalize the graphics. Deliverable: Up to 10 copies plus electronic form (Word or PDF). Task S: Presentations ROMA will prepare one PowerPoint presentation summarizing the final draft performance criteria. We have budgeted for presentations on two separate days, which may be to the Planning Commission, City Council or both. Deliverable: PowerPoint in PDF, PowerPoint Show (PPS) or HTML format for posting on City's webstte and/or printing by City. 0 ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 4 Task 6. Final Performance Criteria E Based on direction of the Planning Commission and City Council, we will revise the text and graphics once. Our proposal assumes that the revisions will be minor in nature and will not require additional research, analysis or illustrations. Deliverable: Final performance criteria in electronic form (Word or PDF). Schedule Task 1: 2 weeks Task 2: 3 weeks Task 3: 3 weeks (plus estimated 2 weeks for staff review) Task 4: 2 weeks Task 5: As required for scheduling and packet distribution (assume 4 weeks) Task 6: 2 weeks following second meeting Total: 18 weeks from notice to proceed Staffing Walter Rask, Principal with ROMA Design Group, will be the day -to -day project manager. As head of planning for downtown San Diego, Mr. Rask had eight years of experience drafting and implementing development regulations. At ROMA, he has managed similar regulatory assignments for cities including Santa Monica, Salinas and San Ramon California. Jim Adams, Principal, will be the managing principal overseeing the production of the work, and Boris Dramov, President of ROMA Design Group, will act as the design principal, providing his expertise in the structure and content of the performance criteria. Other ROMA professional staff will be assigned to the production of specific task deliverables. Fee As broken down in the attached table, the fee for these services is estimated at $88,960, inclusive of all direct costs. ROMA will not exceed this amount, without written authorization from the City of Newport Beach. ROMA Ms. Leslie Daigle, Mr. Homer Bludau and Ms. Sharon Wood City of Newport Beach April 18, 2005 Page 5 0 We look forward to working with you on this important assignment. Sincerely, ROMA Design Group Jim Adams, AIA Managing Principal cc: Elwood C. Tescher, EIP Associates City of Newport Beach Airport Area, Performance Criteria Fee Proposal April 18, 2005 Task Fee Breakdown _ _Travel (OAK to SNA) IMileage, Car Pazking, Subtotal Airfare Rental Tolls Hotel Travel — Total Principal, Architect/) Managing. Urban Pr ncipal Urban Technical Subtotal Princi al Designer er i in Charge Designer Support Labor W.Rask J.Adams B.Dramov, $ 160 $ 220 S 240 $ 145 ! $ 75 1 (Research and Stakeholder Interviews 2 !Workout Scenario 3 Administrative —I -- -- ._. -— 4 IFinal Draft Performance Criteria _ _ 5 Presentations _ _ 6 Final Performance Criteria 48 16 8 _ _24 16 1 40 8 80 40 _ 401 8 4 80 _ 8 4 _ 2 16 16 32 t 32 i 16 8J 4 2 16 $ 14,920 $2 880 $ 15,120 $ 6,160 $ 13,360 : $ 3,840 $ 660 $ 160 $ 180 $ 440 $ 80 $ 90 ! — — — $ 880 $ 160 $-180 $1,000 $ 610 $ 15,920 $ 28,490 $ - $ 15,120 $ 350 $ - $1,570 $ 6,160 $ 14,930 $ - $ 3,840 Subtotal Hours --- - - --.. Subtotal Labor/Travel Other Reimbursables (printing, telephone, etc.) 152 .__.._ --- $ 24,320 104 24 96 192 - r-- ----- •---...------- .....- $ 22,880 $ 5,760 ! $ 13,920_ $ 14,400 I .- -- $ 81,280 —� - - -- $ 1,980 -- $ 400 -- -- $ 450 $ 350 — $3,180 $ 84,460 $ 4,50QI TOTAL I I I $ 88,960 W of Newport Beacto NO. BA- 058 BUDGET AMENDMENT 2004 -05 AMOUNT: $SS,aso.00 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase Expenditure Appropriations AhfD Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase expenditure appropriations from unappropriated General Fund Reserves for a professional services agreement to prepare performance criteria for evaluating residential development projects in the airport area. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 010 3605 General Fund - Fund Balance REVENUE ESTIMATES (3601) Fund /Division Account Description EXPENDITURE APPROPRIATIONS (3603) Signed: Amount Debit Credit $88,960.00 $88,960.00 41-.20 -1_1 Date Date City Council Approval: City Clerk Date Description Division Number 2710 Planning - Administration Account Number 8080 Services - Professional & Technical Division Number Account Number Division Number Account Number Division Number Account Number Signed: d mancial Approvar/l: Administrati a ces Director Signed: iv . Administrative Appr al: CIfy Manager Signed: Amount Debit Credit $88,960.00 $88,960.00 41-.20 -1_1 Date Date City Council Approval: City Clerk Date 0 "RECEIV D AFTER ENDA PRINTED' f -9S PROFESSIONAL SERVICES AGREEMENT WITH ROMA Design Group THIS AGREEMENT is made and entered into as of this day of 2005 by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and ROMA Design Group, a California corporation, whose address is 1527 Stockton Street, San Francisco, California, 94133 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to develop performance criteria for residential development in the Airport Business Area ( "Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal members of Consultant for purposes of Project shall be Jim Adams and Boris Dramov. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the 27th day of April, 2005, and shall terminate on the 31st day of December, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached as Exhibit "A" and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE The Consultant acknowledges the importance to the City of the City's project schedule and agrees to put forth reasonable efforts in performing the services with due diligence under this Agreement in a manner consistent with that schedule, as provided in Exhibit "A" hereto. The City understands, however, that the Consultant's performance must be governed by sound professional practices. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit "B" and incorporated herein by reference. In no event shall Consultant's compensation exceed Eighty -Eight Thousand, Nine Hundred Sixty Dollars and No Cents ($88,960.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. FA • • 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work 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 set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Jim Adams to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit "A" or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Sharon Wood shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized 3 • s representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to 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. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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, 4 0 0 without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 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 5 • • in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the, Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, ,y • i employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000) per claim. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, and volunteers. 7 f•, r� U V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) days written notice has been received by City. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. H. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further M 0 0 compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of 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 City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its 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. 0 0 21. RECORDS 0 Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to 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 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 under this Agreement. 22. 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 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 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 paragraph is intended to limit City's rights under any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such 10 0 0 persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Sharon Wood Assistant City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3222 Fax (949) 644 -3020 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Jim Adams ROMA Design Group 1527 Stockton Street (415) 616 -9900 FAX (415) 788 -8728 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 11 a 0 Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all applicable statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32. 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. 12 a • 33. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless CITY Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: Steven Bromberg, Mayor for the City of Newport Beach ROMA DESIGN GROUP A California Corporation 0 Jim Adams, Principal Attachment: Exhibit A - Scope of Services Exhibit B — Schedule of Billing Rates 13 04/26/05 TUE 15:09 FAX 415 788 8728 ROMA DESIGN • Exhibit B ROMA HOURLY RATE SCHEDULE FOR PROFESSIONAL SERVICES go Principal $160- 260.00 Project Manager $145 - 170.00 Project Architect /Designer $145- 170.00 Urban Designer /Site Planncr $90- 150.00 Architect $90- 150.00 Landscape Architect $90- 150.00 CADD Operator /Technical Support $65- 115.00 Graphic Designer $65- 115.00 Word Processor /Support $65- 115.00 ANNUAL RATE ADJUSTMENTS: The above rates shall remain in effect for the calendar year indi- cared. Thereafter, the rates may be subject to annual adjustment. METHOD OF PAYMENT: Professional services arc billed monthly and payment is due 30 days following date of ihvoice. Invoices unpaid after 30 days arc subject to a service charge of one and one- half percent per month. ROMA reserves the right to suspend work on this project if payment is not received within 45 days from invoice date. REIMBURSABLE EXPENSE: Actual expenditures for the Project are reimbursable at Cost plus ten percent for coordination and processing, and will be billed in addition to professional service fees. Examples of reimbursable expense are transportation and living expenses while traveling in connection with the Project, long distance telephone calls, reproduction costs, postage and photography. REIMBURSABLE CONSULTANTS: Professional service Pecs and reimbursable expense of autho- rized consultants on the Projcct will be billed at cost plus ten percent for coordination and processing. LIMITATION OF LIABILITY In authorizing ROMA to proceed on work based upon the above professional rare schedule, the Owner agrees to limit ROMA's liability to the Owner and all construc- tion contractors and subcontractors (if any) on the Project due to ROMA's professional negligent acts, errors or omissions, such that the total aggrcgacc liability of ROMA to all those named above shall not exceed $50,000 or the total fee for services rcndered on this Project, whichcwcr is greater. It is understood that the limitation of liability has no affect on the comprehensive liability insurance nor does it apply to any third party claims against the professional liability insurance. 9 002 3r�v(a� PROFESSIONAL SERVICES AGREEMENT WITH ROMA DESIGN GROUP FOR PLANNING SERVICES THIS AGREEMENT is made and entered into as of this 30th day of May, 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and ROMA DESIGN GROUP, a California Corporation, whose address is 1527 Stockton Street, San Francisco, California 94133 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide planning and design services upon the terms and conditions contained in this Agreement. C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Boris Dramov. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 1s` day of June, 2009, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 1 3. TIME OF PERFORMANCE The Consultant acknowledges the importance to the City of the City's project schedule and agrees to put forth reasonable efforts in performing the services with due diligence under this Agreement in a manner consistent with that schedule, as provided in Exhibit "A" hereto. The City understands, however, that the Consultant's performance must be governed by sound professional practices. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Billing Rates attached hereto as Exhibit "B ", both incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Ninety -nine Thousand, Nine hundred and Ninety-five Dollars and no /100 ($99,995.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an FA hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant has designated Boris Dramov as 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 shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the 3 necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Planning Department. Patrick J. Alford shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. In performing duties set forth in the Scope of Services in Exhibit "A ". 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide photocopying, blueprinting and other services through City's reproduction company. Consultant will provide electronic copies of documents and the City will coordinate the required documents with City's reproduction company. All other reproduction will be the responsibility of Consultant. 8. STANDARD OF CARE 8.9 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are El legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of M. performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property 7 damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and 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. Except as specifically authorized herein, 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. 4 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. `7 i�7��77T+� Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this 10 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. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 11 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. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Patrick J. Alford Planning Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3200 Fax: 949 - 644 -3229 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attn: Boris Dramov ROMA Design Group 1527 Stockton Street San Francisco, California 94133 Phone: (415) 616 -9900 Fax: (415) 788 -8728 26. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. iN Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. COMPLIANCE WITH APPLICABLE LAWS Consultant shall at its own cost and expense comply with all applicable statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and 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 same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 13 31. 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. 32. 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. 33. 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. 33. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: —x City Attorney for the City of Newport Beach ATTEST• ` By.14//-v A"�� iVonne Harkless, ty Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: / - / v City Manager N for the City of Newport Beach T: Boris Drambv, Pres'Ment ROMA Design Group ments: Exhibit A - Scope of Work Exhibit B — Schedule of Tasks and Billing Rates 14 CITY OF.NEWPORT BEACH AIRPORT BUSINESS AREA KOLL /CONEXANT TRIANGLE CONCEPTUAL DEVELOPMENT PLAN SCOPE OF WORK May 20, 2008 Background In 2006 and 2007, ROMA Design Group assisted the City of Newport Beach in establishing land use and urban design policies and a Conceptual Framework Plan for infill development within the Airport Business Area, immediately east of John Wayne Airport, bounded by Jamboree Road, Campus Drive and Bristol Street. The policies, which have been incorporated within the adopted General Plan, promote the introduction of residential and mixed -use development within this industrial and commercial district, provided that such development contributes to the creation of viable neighborhood clusters with appropriate infrastructure, pedestrian- oriented features and open spaces, and with a pattern of development that offers a strong sense of community and livability. The General Plan policies allow for a maximum of 2,200 units of housing within the Airport Business Area. All but 550 of these units must replace existing development so that there is no net gain of vehicular trips; the 550 "additive" units may be constructed on existing surface parking lots located east of MacArthur Boulevard. This area, referred to in the General Plan as the Conceptual Development Plan Area, has strong potential for the introduction of new residential development, as it includes two large tracts of assembled property, including the 80 -acre Koll property, and the 26 -acre Conexant site. The General Plan requires the property owners in this area to collaborate in the preparation of a single Conceptual Development Plan to "demonstrate the compatible and cohesive integration of new housing, parking structures, open spaces, recreational amenities, pedestrian and vehicular linkages, and other improvements with existing non - residential structures and uses. " The two principal property owners, Conexant and Koll, have been unable to reach agreement on various issues including the allocation of the 550 additive units between the two sites, and as such have not been able to prepare a single Conceptual Development Plan, as required by the General Plan. Each of the property owners has submitted separate Conceptual Development Plans to the City of Newport Beach for their consideration. In light of these developments, the City of Newport Beach has requested that ROMA Design Group work with the property owners and the City's General Plan Implementation Committee to develop a recommended Conceptual Development Plan for consideration by the City Council. The Conceptual Development Plan will be aimed at achieving the policy goals of the General Plan, the creation of a viable and cohesive residential mixed use clusters and, to the extent practicable, the objectives of the property owners. While all City of Newport Beach Airport Business Area Scope of Work Koll/Conexant Triangle Conceptual Development Plan May 20, 2008 Page l EXHIBIT A efforts will be made to develop a Plan with policy recommendations that represent a consensus position between the City and the property owners, it is understood that the process may not result in such consensus, and that the responsibility of determining the land use policies for the area ultimately rests with the City Council. The approved Plan will then provide the basis for property owners to seek subsequent zoning amendments and development agreements with the City of Newport Beach. Scope of Services ROMA Design Group will work with project stakeholders and the City's General Plan Implementation Committee to develop master planning and urban design recommendations for a Conceptual Development Plan that address the policy and procedural requirements of the General Plan. It is assumed that the City or others will provide any required services related to transportation planning, civil engineering, cost estimation, and/or market and development feasibility. Task 1: Review and Analyze Property Owner Plans: ROMA will review and analyze the two Conceptual Development Plans that have been prepared by Conexant and Koll, in relation to the policies and standards of the General Plan, and identify issues for discussion and further exploration. To facilitate this review and to prepare for the first focus group, some graphic materials will be prepared in advance. To the extent that it is available, the City and/or property owners will provide ROMA with the following information: • Proposed number and location of "replacement" and "additive" units on the respective properties. Identification of any constraints related to project phasing, including: timing and availability of land; existing activities to remain; existing lease terms; proposed "packaging" of development improvements with streets and open spaces; proposed timing, locations and quantities for parking replacement; etc. ROMA will prepare a list of questions for each of the property owners, once the plan proposals have been reviewed. • Any issues associated with the construction of utilities or roadways, including the need for access easements or rights -of -way. • Electronic files (AutoCAD) of the Framework Plans prepared by each applicant. Task 2. Stakeholder Focus Group Meeting Number 1: Over the course of one day, ROMA will meet with key project stakeholders to discuss project issues and objectives and to review the findings of Task 1. These meetings will include sessions with: city staff, property owners (individually and together), and will culminate in a work session with the General Plan Implementation Committee. The goal of the meetings will be to gain a more in -depth understanding of the property owner proposals, and to explore potential strategies City of Newport Beach Airport Business Area Scope of Work KoUlConexant Triangle Conceptual Development Plan May 20, 2008 Page 2 EXHIBIT A for allocating "additive" units in a way that is consistent with General Plan policies and cognizant of property owner objectives. For budgeting purposes, one day of meetings is assumed in Newport Beach. Task 3: Preliminary Development Concept: On the basis of input provided by the stakeholders and the General Plan Implementation Committee, ROMA will prepare a sketch preliminary Development Concept, which will describe the location, distribution and initial allocation of units and the circulation and open space system that complements and supports development. This preliminary concept will also identify potential future locations for additional units, any adjustments to the circulation and open space associated with these, and the threshold requirements for future allocations and development. The product of this effort will be documented in graphic and diagrammatic form and in a manner that is appropriate for discussions in future focus group meetings. Task 4: Stakeholder Focus Group Meeting Number 2: ROMA will conduct a second round of focus group meetings with the city staff, property owners and with the Implementation Committee, to: review and discuss the preliminary development concepts prepared in Task 3. During these meetings, outstanding issues of concern will be identified, ways of reconciling differences will be discussed, and potential improvements to the preliminary development concepts will be identified. At the conclusion of the focus group sessions, ROMA will de -brief with City staff to formulate a direction for the Conceptual Development Plan. For budgeting purposes, one day of meetings is assumed in Newport Beach. Task S: Recommended Conceptual Development Plan: On the basis of input from the stakeholders, staff and Implementation Committee, ROMA will prepare a recommended Conceptual Development Plan, which will describe the location, distribution and initial allocation of units and the circulation and open space system that complements and supports development. The recommended Conceptual Development Plan will also identify potential future locations for additional units, any adjustments to the circulation and open space associated with these, and the threshold requirements for future allocations and development. In the preparation of the recommendations, ROMA will work closely with the staff and, if necessary, dialogue with the General Plan Implementation Committee and/or the property owners, as appropriate and as required. The product of this effort will be documented in text, graphic and diagrammatic form and in a manner suitable for consideration by City Council. Task 6: Presentation to Stakeholder Group: ROMA will provide copies in advance to the city staff for distribution to property owners and the General Plan Implementation Committee of the Recommended Conceptual Development Plan, and will make a presentation to this group. It is assumed that ROMA in conjunction with City staff will meet with the assembled group and present to them jointly on the same day. Any comments on the recommendations will be documented by city staff and forwarded by City of Newport Beach Airport Business Area Koll /Conexant Triangle Conceptual Development Plan Scope of Work May 20, 2008 Page 3 EXHIBIT A them to the City Council along with the Recommended Conceptual Development Plan for consideration. Task 7. Public Hearings: ROMA will make a presentation at one public hearing each to the Planning Commission and City Council. Work Schedule The project can be completed in two to three months, but may take longer depending upon the ability to schedule meetings and get the information. A more definitive schedule will be worked out with the city staff upon commencement of the project. Fee Estimate The attached spreadsheet provides a breakdown of costs by personnel and task. The work will be undertaken on a fixed fee basis, and will not exceed $100,000, without written authorization and mutual agreement by both parties. City of Newport Beach Airport Business Area Koll/Conexant Triangle Conceptual Development Plan Scope of Work May 20, 2008 Page 4 EXHIBIT A EXHIBIT A CITY OF NEWPORT BEACH AIRPORT BUSINESS AREA KOLUCOEXANT TRIANGLE CONCEPTUAL DEVELOPMENT PLAN WORK SCHEDULE Task 1: Review and Analyze Property Owner Pla Task 2: Stakeholder Focus Group Meeting #1 .• Task 3: Preliminary Development Concept Task 4: Statkeholder Focus Group Meeting #2 Task 5: Recommended Conceptual Developme Task 6: Presentation to Stakeholder Group Task 7: Public Hearings • ••• JUN JUL AUG SEP OCT NOV CITY OF NEWPORT BEACH AIRPORT BUSINESS AREA KOLL /CONEXANT TRIANGLE CONCEPTUAL DEVELOPMENT PLAN May 20, 2008 Task ROMA Principal- Consulting Planning Urban Graphic in- Charge Principal Total Dramov Adams Principal Designer Designer $320 $240 $240 $120 $100 Task 1: Review /Analyze Property Owner Plans _Task 2: Stakeholder Focus Group #1 Task 3: Preliminary Development Concept _Task 4: Stakeholder Focus Group #2 Task 5: Recommended Conceptual Development Plan Task 6: Presentation to Stakeholder Grou Task 7: Public Hearings 8 8 16 40 40 16 $ 14,720 8 8 8 6,400 _ 24 16 _.____.2.4 8 40 16 23,680 8 8 6,400 24 16 _ 60 24 30,720 8 8 8 6,400 8 8 8 6,400 Total Hours 88 28,160 72 112 140 56 5,600 94,720 Labor Fee 17,280 26,880 16,800 Direct Expenses (Travel, Reproduction, Delivery, etc.) 5,275 ,TOTALIZE $ 99,995 M x x m m