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
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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
$65- 125.00
Rana Lkugn Graq - 1;?; Slorkton S1rea • .San Fmidsro, Cali4vnia 94133
1'Lf.r4tjj616- 99()r) • FAX '4t51-,88 -8-7z$
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CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
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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.
•
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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.
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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
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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
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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:
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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.
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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
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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.
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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.
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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.
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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
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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.
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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
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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
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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.
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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
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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'
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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