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HomeMy WebLinkAboutC-4588 - PSA for Conceptual Planning ManagementAMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH T.C. COLLINS & ASSOCIATES, INC. FOR CONCEPTUAL PLANNING MANAGEMENT THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ( "Amendment No. One'), is entered into as of this 7-4 day of May, 2011, by and between the CITY OF NEWPORT BEACH, a California'Municipal Corporation ( "City'_'), and T.C. COLLINS & ASSOCIATES, INC. a California corporation whose address is 3600 Birch Street, Suite 220, Newport Beach, California 92660 ( "Consultant "), and is made with reference to the following: RECITALS: A. On July 27th, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for conceptual planning management for services for the City Hall Site located at 3300 Newport Boulevard ( "Project "). B. City desires to enter into this Amendment No. One to reflect additional services not included in the Agreement to extend the term of the Agreement to June 30, 2011 and to increase the total compensation by four thousand dollars ($4,000.00). C. City and Consultant mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement, shall be amended in its entirety and replaced with the following: The term of the Agreement shall terminate on June 30, 2011, unless terminated earlier as provided for in Agreement. 2. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include; community outreach, new Councilmember orientation and preparation of a community services center option. 3. COMPENSATION The introductory paragraph to Section 4 of the Agreement shall be amended in its entirety and replaced with the following: City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the Agreement. Consultant's total amended compensation for all work performed in accordance with this Agreement including all reimbursable items and subconsultant fees, shall not exceed Twenty -Nine Thousand Dollars and no /100 ($29,000.00) without prior written authorization from City ( "Total Amended Compensation "). No billing rate changes shall be made during the term of this Agreement without the prior written approval of the City. 3.1 The Total Amended Compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Four Thousand Dollars and no /100 ($4,000.00), without prior written authorization from City. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. One on the dates written below. APPROVED AS TO FORM: OFFICE F IHE CITY ATTORNEY Date: �. By: C� David R. Hunt City Attorney ATTEST: 6-d'; IDate: By: �zkI Leilani I. Brown City Clerkor,s _y d r ,Z y3 U document1 CITY OF NEWPORT BEACH, A California municipal corporation Date: 6/7/ t( By`— Dana Smith Assistant City Manager CONSULTANT: T.C. COLLINS & ASSOCIATES, INC., a California corporation Date: � ' /-5 " i/ Bye Timothy C. OdIlins, President Date: By: Erin K. Kennedy, Secretary/Treasurer -'lam 0 PROFESSIONAL SERVICES AGREEMENT WITH T.C. COLLINS & ASSOCIATES, INC. THIS AGREEMENT F PROFESWNAL SERVICES ( "Agreement') is made and entered into day of $/ 2010, by and between the CITY OF NEWPORT BEACH, a California Muilicipal Corporation ( "City "), and T.C. Collins & Associates, Inc. a California Corporation whose address is 3600 Birch Street, Suite 220, Newport Beach, California, 92660 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. The existing City Hall located at 3300 Newport Boulevard ( "City Hall Site ") may be vacated by City Hall in 2012 concurrent with completed construction of the proposed new Civic Center. C. City desires to engage Consultant to manage a conceptual planning process for the redevelopment of the City Hall Site, which may include the Via Lido Plaza and Lido Marina Village properties ( "Other Properties "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of Project shall be Timothy C. Collins. 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 11th day of January, 2011, unless terminated earlier as set forth herein. 2. . SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit 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 accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Twenty -Five Thousand Dollars and no /100 ($25,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. Professional Services Agreement Page 2 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. 4.2 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit C. 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 TIMOTHY C. COLLINS 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 Planning Department. DANA SMITH, ASSISTANT CITY MANAGER, or her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. Professional Services Agreement Page 3 B. Provide blueprinting and other Services through City's reproduction company for documents and materials contemplated by this Agreement including proposal documents ( "RFP "), responses, and agendas. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. D. Establish and maintain a Project file transfer protocol site to manage electronic files and their dissemination of the RFP. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties') from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, Professional Services Agreement Page 4 judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 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. 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. Professional Services Agreement Page 5 13. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Professional Services Agreement Page 6 i i i Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 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, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: L Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party Professional Services Agreement Page 7 or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 14. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 15. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the Work to be performed under this Agreement without the prior written authorization of City. 16. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement and only as to the City Hall Site, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request and shall deliver to City a complete copy of all documents upon the completion of Project. Professional Services Agreement Page 8 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 18. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 20. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. Professional Services Agreement Page 9 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 23. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 24. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Dana Smith, Assistant City Manager City Manager's Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3000 Fax: 949- 644 -3020 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Professional Services Agreement Page 10 Attention: Timothy C. Collins T.C. Collins & Associates, Inc. 3600 Birch Street, Suite 220 Newport Beach, CA 92660 Phone: 949 - 863 -9099 Fax: 949 - 863 -9010 25. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 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, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 Notwithstanding the above provisions, this Agreement shall automatically terminate upon failure of Consultant to enter agreements similar to this Agreement with the owners of the Other Properties. In such event, all payments previously paid to consultant shall be returned to City in full. 26.2 Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, Professional Services Agreement Page 11 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. 31. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 33. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. Professional Services Agreement Page 12 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Professional Services Agreement . Page 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, OFFICE OF THE CITY ATTORNEY A Municipal Corporation By. By. C� \ll Leonie Mulvihill, Dave Kiff, City Man ger Assistant City Attorney CONSULTANT: T.C. COLLINS & ASSOCIATES, INC. Y Timothy C. Collins, President By: � -� b4111', ^ (Financial Officers Title: lea�l'lgc I sarek vll Print Name: t(LIN K, •KCAI►1V Attachments: Exhibit A — Scope of Services Exhibit B — Payment Schedule Exhibit C — Billing Rates [A10-00280] 07.21.10 Professional Services Agreement Page 14 Exhibit A SCOPE OF SERVICES In accordance with all the terms of the Agreement, Consultant shall: 1. Provide planning management services necessary to distribute to land planning firms a Request for Proposals (RFP) to draft and develop two alternative concept plans for the Project area. Draft performance schedule for Project. Conduct a pre - submittal meeting with major stakeholders; disseminate background studies, plans, and templates. 2. Monitor candidate firms progress and maintain an open platform for answering questions from all candidate firms. Prepare matrix /spreadsheet ranking candidate firm submittals, interview and communications with candidate firms and provide selection recommendations. 3. Draft a final report on the RFP process with recommendations and forward to the major stakeholders (Ad Hoc Committee and owners of Other Properties) for direction and approval. 4. Payment of up to $35,000 to selected land planning firm for services described in the RFP at Consultant's sole expense and not subject to reimbursement under the Agreement. 5. For the selected land planning firm, maintain records of all deliverable and track schedule performance. Participate in four open and public meetings with the selected firm on the development of the City Hall Site; p repare appropriate agenda and PowerPoint materials. Meetings include, but are not necessarily limited to: a. Two open and public meetings with the City Council's Ad Hoc Committee on the Re -Use of the City Hall Site all properties; b. One City Council Study Session; and c. One Regular Meeting of the City Council. 6. Remain available to the City's Public Information Office for media communications, the City Council Ad Hoc Committee, and City staff for responses to inquiries about the Project. On a monthly basis, meet and confer with City and stakeholder representatives to share progress and track calendar events. 7. Delivery of two formal alternative development concept plans to the City by January 11, 2011 at the earliest and no later than February 28, 2011. 8. Cooperatively work with City staff to place relevant information about the Project on the City's website and other reasonable and customary consultant support duties, as assigned within the general scope of contracted services. Exhibit B PAYMENT SCHEDULE Compensation for work performed under this Agreement shall be disbursed in increments of $5000 concurrent with completion of specified events and /or tasks included in the Scope of Services (Exhibit A) in accordance with the following schedule: TASK PAYMENT Task 1 $5,000 Task 3 and selection of land planning firm by City Council $5,000 Delivery of 50 % concept plan by land planning firm $5,000 Participation at City Council Study Session included in Task 5 $5,000 Task 7 1$5,000 Exhibit C SCHEDULE OF BILLING RATES Principal $215 Senior Project Manager $165 Project Manager $140 Junior Project Manager $95 Project Estimator /Analyst $65 Administrative $48 Reproduction Charges: Black and White Copies $.10 Color Copies $35 Mileage will be billed at $.48 per mile. CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 22 July 27, 2x01100 ' TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL l -b u U FROM: City Manager's Office Dave Kiff, City Manager 949/644 -3002 or dkiff @newportbeachca.gov SUBJECT: Resolution 2010-: Creation of an Ad Hoc Committee on the Re -Use of the City Hall Site; Waiver of Council Policy F -14; Other Input on the Conceptual Planning Process for Lido Marina Village and Via Lido Plaza ISSUE: The City Council will consider designating an ad hoc committee to participate in a conceptual planning process to analyze potential land use alternatives that includes the City Hall site at 3300 Newport Boulevard, Lido Marina Village, and Via Lido Plaza. 1. Adopt Resolution 2010- _ relating to the City Council Ad Hoc Committee on the Re -Use of the City Hall Site. 2. Appoint and to the Committee. 3. Waive provisions of Council Policy F -14 to allow the hiring of T. C. Collins and Associates Inc. as Project Manager for this effort. DISCUSSION: The current City Hall site at 3300 Newport Boulevard ( "City Hall Site ") will be vacated by City staff by late spring of 2012. At the same time, the Lido Marina Village area is in need of a comprehensive plan for revitalization. These circumstances, in conjunction with pending changes to the Via Lido Plaza shopping center make this an ideal time to develop several comprehensive land use concepts that consider all three parcels . in concert with each other: While the proposal is for the landowners to equally participate in this conceptual effort, it is with the understanding that they each retain direct control over their specific parcel(s). The existing land use designations and retail and office uses on the Via Lido Plaza site remain appropriate for the location, but are ripe for major comprehensive tenant improvements and reconstruction. It is likely that the Lido Marina Village site will remain a mix of retail and office space, with possible residential uses added. A boundary adjustment between the City Hall parcel and Via Lido Plaza would facilitate redevelopment of Via Lido Plaza and the City Hall site more effectively by realigning the curved property lines and removing existing easements. The City Hall site can accommodate a wide variety of public uses — including such ideas as a community park, community center, temporary police station, or a police substation. It is likely that the City Hall Site will continue to include Fire Station #2, although its location within the site could change. Alternatively, non - public uses for the City Hall site may also be appropriate, such Creation of an Ad Hoc Committee on the Re-Use of the City Hall Site; Waiver of Coune!! Policy F -94; Other Input on the Conceptual Planning Process for Lido Marina Village and Via Lido Plaza July 27, 2010 Page 2 as single family residential or multi - family residential, such as senior housing. Due to its location within the Coastal Zone, development of the City Hall Site will likely be subject to a Coastal Development Permit. To prepare for the effective redevelopment of the City Hall Site, the proposed Resolution envisions the establishment of a City Council Ad hoc Committee on the Re -Use of the City Hall Site to participate in this preliminary and conceptual planning activity that will provide insights about potential obstacles and opportunities for future changes to the areas shown below. 4 Zoning. Lido Marina Village — Via Lido Plaza — City Hall Site -: W P , N The owners of the Lido Marina Village and the Via Lido Plaza sites have tentatively agreed to retain Tim Collins (former member of the City's Harbor Commission) to serve as project manager of a conceptual planning process. The consultant would facilitate preparation of and distribution an RFP to retain a qualified planning firm to develop two concept plans for the Lido Marina Village, Via Lido Plaza and City Hall sites. The selected firm would receive a $35,000 stipend to prepare two different proposed concept plans for all three sites. Uses of the City Hall Site would at a minimum include: 1. A predominantly or wholly public use; and 2. A predominantly residential, retail, office, or mixed use. Creation of an Ad Hoc Committee on the Re -Use of the City Hall Site; Waiver of Council Policy F14; Other Input on the Conceptual Planning Process for Lido Madna Village and Via Lido Plaza July 27, 2010 Page 3 City Hall Site -Public Use Alternative Via Lido Plaza *Other Use Alternative Lido Marina Village Two Concept Plans for the Area as a Whole Cooperatively, the owners of the Lido Marina Village and Via Lido sites and the City would each contribute up to $25,000 to fund the planning effort and provide the stipend. The City Manager has tentatively agreed to participate in this planning effort, pending equivalent commitment from the owners of the Lido Marina Village and Via Lido sites. Attached for Council review are the agreement for Mr. Collins and his proposed scope of services. To effectively participate in the planning effort, it is recommended that the City create a three - member Council ad hoc committee to represent the City. Included in that representation are at least four (4) public meetings as follows: • Two open and public meetings with the City Council's ad hoc Committee on the re -Use of the City Hall Site and the Lido Marina Village area concept planning effort; • One Council study session; and • One regular meeting of the City Council. Each of the aforementioned meetings will be noticed and open to the public. The primary focus of the ad hoc Committee's duties would be the redevelopment of the City Hall site and creating a seamless and integrated plan with the private properties. The contracted planning firm and Tim Collins may work and meet separately with other owners and assist them in planning for future development of properties that we expect will result in a cohesive, development plan that appropriately integrates all the Lido Marina Village, Via Lido and City Hall sites regardless of the individual uses on each parcel. The proposed resolution creating the Committee reflects this understanding. Major Milestones Major milestones and tasks within the agreement for Mr. Collins are generally as follows: 1. Develop and distribute a Request for Proposals (RFP) to planning firms interested in receiving a single $35,000.00 stipend to engage the property owners (and, in the case of the City -owned land, the public) in developing 2 alternative concept plans for the Site (8- 2010). 2. Ranking, recommendation, and selection of the land planner by the three parties via consensus of the three parties' representatives (September 2010). Creation of an Ad Hoc Committee on the Re -Use of the City Hall Site; Waiver of Council Policy F -14; Other Input on the Conceptual Planning Process for Lido Marina Village and Via Lido Plaza July 27, 2010 Page 4 3. Funding of the stipend using the three parties' separate $25,000.00 contributions (9- 2010). 4. At least four open and public meetings with the selected land planner as described above. 5. Delivery of two written alternative concept plans for the overall planning area, including concepts and alternatives for the City Hall re-use site to the three parties not later than (November 17, 2010). 6. Preparation and support of a meeting of the City Council in January 2011, at which the City Council may direct staff to further consider and provide appropriate technical planning studies and environmental documentation for a final decision on the City Hall re -use site. Waiver of F -14 If the City participates in this process, it is considered a "minor project" under Council Policy F- 14 (a portion excerpted below). The Policy directs staff to make a consultant selection based on stated criteria and requires solicitation of proposals from at least three qualified consultants. To expedite the process, staff did not solicit other consultants for this project; therefore, this Agenda Item asks the Council to waive Policy F -14. Council Policy F -14 (excerpt) c. Minor Project -Anticipated fee under $30, 000 L The Department Director shall maintain current tiles on qualified consultants in appropriate categories. The Department shall contact at least three (3) qualified consultants and request them to submit a proposal. fl. The Department Director shall make a selection based upon the criteria noted in Section D(1)(a) of this policy and is authorized to execute a Professional Services Agreement reviewed and approved by the City Attorney. Environmental Review: Pursuant to California Environmental Quality Act ( "CEQA ") Guidelines Section 15004(b)(2)(A) and applicable case law formation no environmental review is required at this time. The formation an ad hoc Committee is at the sole and absolute discretion of City and the City is not committing itself.to any definite course of action on any future project. City retains its full authority and right to consider all feasible mitigation measures and alternatives for any future project, including a no project alternative. Public Notice: This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Dave IQff City Manager Attachments: 1 — Resolution 2010 - 2 — PSA with Tim Collins Creation of an Ad Hoc Committee on the Re -Use of the City Hall Site; Waiver of Council Policy F14; Other Input on the Conceptual Planning Process for Lido Marina Village and Via lido Plaza July27, 2010 Page 5 RESOLUTION 2010- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH FORMING THE CITY COUNCIL AD HOC COMMITTEE ON THE RE -USE OF THE CITY HALL SITE WHEREAS, the voters of the City of Newport Beach, by approving Measure B on the February 2008 ballot, amended the City's Charter to direct that the location of City Hall be at 1100 Avocado Avenue, just north of the Central Library, and WHEREAS, the Newport Beach Civic Center Project is now underway, with excavation occurring and development planned for the 1100 Avocado site as soon as January 2011; and WHEREAS, the Newport Beach City Council, as a part of its adopted goals for 2010, directed that the planning begin on the re -use of the "old" or current City Hall site at 3300 Avocado Avenue; and WHEREAS, to maximize the potential opportunities at this part of the community, this planning is intended to include two additional landowners that control the use of the property at Lido Marina Village and Via Lido Plaza; and WHEREAS, the City desires to have an open, public, and participatory process relating to the "old' City Hall site and its interaction with adjacent properties; and WHEREAS, the City Council desires that the planning process result in at least two concept plans for the three site components coming forth from the planning process, with each of the two concept plans providing for two specific alternatives for the City Hall site - one that would be primarily or wholly a public use for the City Hall site and one that would primarily be residential, retail, office, or mixed use; and WHEREAS, the City Council desires that the planning process as it relates to the City Hall site be guided by a City Council ad hoc Committee whose meetings shall be open to the public; now, therefore be it RESOLVED by the City Council of the City of Newport Beach that it hereby establishes the City Council ad hoc Committee on the Re -Use of the City Hall Site per the attached Membership, Term, Purposes and Responsibilities. ADOPTED this 27"' Day of July, 2010. KEITH CURRY Mayor of Newport Beach ATTEST: LEILANI BROWN City Clerk Creation of an Ad Hoc Committee on the Re-Use of the City Hall Site; Waiver of Council Policy F -14; Other input on the Conceptual Planning Process for Lido Marina Village and Via Lido Plaza July 27, 2010 Page 6 CITY COUNCIL AD HOC COMMITTEE ON THE REUSE OF THE CITY HALL SITE AUTHORIZATION: Established by Resolution No. 2010 -_ adopted on July 27, 2010. MEMBERSHIP: Three members of the City Council, appointed by the Mayor. City staff support shall come from the Planning Department. TERM: Through February 28, 2011. PURPOSE & RESPONSIBILITIES: A. To oversee the preparation and development by a private sector planning firm of two alternative concept plans for the current City Hall site at 3300 Newport Boulevard. The two alternatives must include one predominantly or wholly public use plan (including a Fire Station) and one that may be predominantly or wholly mixed use, commercial, residential, retail, or office use. B. To convene and guide public meetings with the planning firm and any related consultants as the meetings related to the re-use of the City Hall site, in addition to at least one City Council Study Session and at least one Regular Meeting of the City Council. C. To participate and serve as the City Council's representative or liaison in a three- party planning process as such participation relates to the City Hall site's interaction with adjacent properties such as Via Lido Plaza and Lido Marina Village. It is envisioned that the two alternatives for the City Hall site would appear in each of two alternative concept plans for the three areas combined. PROFESSIONAL SERVICES AGREEMENT WITH T.C. COLLINS & ASSOCIATES, INC. THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement') is made and entered into as of this _ day of , 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and T.C. Collins & Associates, Inc. a California Corporation whose address is 3600 Birch Street, Suite 220, Newport Beach, California, 92660 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. The existing City Hall located at 3300 Newport Boulevard ( "City Hall Site ") may be vacated by City Hall in 2012 concurrent with completed construction of the proposed new Civic Center. C. City desires to engage Consultant to manage a conceptual planning process for the redevelopment of the City Hall Site, which may include the Via Lido Plaza and Lido Marina Village properties ( "Other Properties "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of Project shall be Timothy C. Collins. 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 11"' day of January, 2011, unless terminated earlier as set.forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit 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 accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Twenty -Five Thousand Dollars and no /100 ($25,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. Professional Services Agreement Page 2 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. 4.2 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit C. 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 TIMOTHY C. COLLINS 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 Planning Department. DANA SMITH, ASSISTANT CITY MANAGER, or her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. Professional Services Agreement Page 3 B. Provide blueprinting and other Services through City's reproduction company for documents and materials contemplated by this Agreement including proposal documents ( "RFP "), responses, and agendas. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. D. Establish and maintain a Project file transfer protocol site to manage electronic files and their dissemination of the RFP. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, Professional Services Agreement Page 4 judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 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. 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. Professional Services Agreement Page 5 13. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Professional Services Agreement Page 6 Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 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, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Reauirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party Professional Services Agreement Page 7 or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 14. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership orjoint- venture. 15. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the Work to be performed under this Agreement without the prior written authorization of City. 16. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement and only as to the City Hall Site, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request and shall deliver to City a complete copy of all documents upon the completion of Project. Professional Services Agreement Page 8 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 18. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 20. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City eamed on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. Professional Services Agreement Page 9 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit Citys rights under the law or any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 23. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 24. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Dana Smith, Assistant City Manager City Manager's Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3000 Fax: 949- 644 -3020 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Professional Services Agreement Page 10 Attention: Timothy C. Collins T.C. Collins & Associates, Inc. 3600 Birch Street, Suite 220 Newport Beach, CA 92660 Phone: 949- 863 -9099 Fax: 949 -863 -9010 25. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 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, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 Notwithstanding the above provisions, this Agreement shall automatically terminate upon failure of Consultant to enter agreements similar to this Agreement with the owners of the Other Properties. In such event, all payments previously paid to consultant shall be returned to City in full. 26.2 Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, Professional Services Agreement Page 11 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. 31. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 33. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 34. CONTROLLING LAW AND VENUE The laws of the State-of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. Professional Services Agreement Page 12 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Professional Services Agreement. Page 13. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, OFFICE OF THE CITY ATTORNEY A Municipal Corporation By: ) By: Leonie Mulvihill, Dave Kiff, City Manager Assistant City Attorney ATTEST. By: Leilani Brown, City Clerk CONSULTANT: T.C. COLLINS & ASSOCIATES, INC. By: Timothy C. Collins, President By: (Financial Officer) Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Payment Schedule Exhibit C — Billing Rates [A7 0-002801 07.21.10 Professional Services.Agreement Page 14 Exhibit A SCOPE OF SERVICES In accordance with all the terms of the Agreement, Consultant shall: Provide planning management services necessary to distribute to land planning firms a Request for Proposals (RFP) to draft and develop two alternative concept plans for the Project area. Draft performance schedule for Project. Conduct a pre - submittal meeting with major stakeholders; disseminate background studies, plans, and templates. 2. Monitor candidate firms progress and maintain an open platform for answering questions from all candidate firms. Prepare matrix /spreadsheet ranking candidate firm submittals, interview and communications with candidate firms and provide selection recommendations. 3. Draft a final report on the RFP process with recommendations and forward to the major stakeholders (Ad Hoc Committee and owners of Other Properties) for direction and approval. 4. Payment of up to $35,000 to selected land planning firm for services described in the RFP at Consultant's sole expense and not subject to reimbursement under the Agreement. 5. For the selected land planning firm, maintain records of all deliverable and track schedule performance. Participate in four open and public meetings with the selected firm on the development of the City Hall Site; p repare appropriate agenda and PowerPoint materials. Meetings include, but are not necessarily limited to: a. Two open and public meetings with the City Council's Ad Hoc Committee on the Re -Use of the City Hall Site all properties; b. One City Council Study Session; and c. One Regular Meeting of the City Council. 6. Remain available to the City's Public Information Office for media communications, the City Council Ad Hoc Committee, and City staff for responses to inquiries about the Project. On a monthly basis, meet and confer with City and stakeholder representatives to share progress and track calendar events. 7. Delivery of two formal alternative development concept plans to the City by January 11, 2011 at the earliest and no later than February 28, 2011. B. Cooperatively work with City staff to place relevant information about the Project on the City's website and other reasonable and customary consultant support duties, as assigned within the general scope of contracted services. Exhibit B PAYMENT SCHEDULE Compensation for work performed under this Agreement shall be disbursed in increments of $5000 concurrent with completion of specified events and /or tasks included in the Scope of Services (Exhibit A) in accordance with the following schedule: TASK PAYMENT Task $5,000 Task 3 and selection of land planning firm by City Council $5,000 Delivery of 50% concept plan by land planning firm $5,000 Participation at City Council Study Session included in Task 5 $5,000 Task 7 1$5,000 Exhibit C SCHEDULE OF BILLING RATES Principal Senior Project Manager Project Manager Junior Project Manager Project Estimator /Analyst Administrative Reproduction Charges: Black and White Copies Color Copies Mileage will be billed at $.48 per mile. $215 $165 $140 $95 $65 $48 $.10 $.35