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HomeMy WebLinkAbout4 - Marina Park Preliminary Design ContractCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 4 November 14, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager (949) 644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: Preliminary Design Contract with Rabben /Herman Design for Marina Park (Park + Marina Plan); Resolution 2006 - relating to a Committee on Marina Park Design; Budget Amendment ISSUE: Should the City Council authorize a sole - source contract with Rabben- Herman Design to conduct Preliminary Design work for a re -use plan for Marina Park? RECOMMENDATION: 1. Authorize the Mayor to execute a professional services agreement (PSA) substantially similar to the attached PSA with Rabben /Herman Design for Preliminary Design of the "Park + Marina Plan" at Marina Park; and 2. Adopt Resolution 2006 -_ establishing the Council /Citizens Committee on Marina Park Design; 3. Adopt Budget Amendment #_ appropriating $90,000 in funds ($85,000 for PSA and $5,000 for contingency) for Preliminary Design work for the Park + Marina Plan. DISCUSSION: Background. The Marina Park Mobile Home Park ( "MP ") is located on a large City - owned Parcel at 1770 West Balboa Boulevard on the Balboa Peninsula between 15th and 18t Streets. The City acquired the property from Pacific Electric Land Company in 1919. The initial use of the property after purchase was. for a City campground. Campers paid $.75 /day for waterfront camp. areas and $.50 /day for interior spaces. The Park was later renovated in 1955 to a trailer court for 120 trailers. Accommodation of larger mobile homes put the Park attoday's capacity of 58 mobile homes. In a series of leases dating back to 1973, the City has consistently informed the mobile home tenants at Marina Park ( "Lessees" or "Tenants ") that MP would be closed and put to another use. In June 2005, the City Council took an action directing City staff to prepare the documents associated with transitioning MP to an interim open space use. Design Contract with RabbenlHerman Design for Park + Marina Plan November 14, 2006 Page 2 On March 14, 2006, the Council approved park closure documents, starting the clock ticking on what is at least a 12 -month process to close MP. Re -Use Planning. In early 2005, the Council formed the City Council /Citizens Committee on Marina Park Planning via Resolution 2005 -4. The resolution set goals for future use of MP by asking the Committee to: 1. Gather and consider technical information related to the property; 2. Assess the community needs relating to parks, boating, +and recreation. facilities; 3. Develop a plan for gaining public input on future use of the property; and finally to 4. Develop possible future re -use alternatives for the City Council to consider. The Committee met at least four times between March 2005 and September 2005 in a series of public meetings at Newport Beach City Hall. They heard presentations by eight different groups or persons advocating eight different future use scenarios for Marina Park. These proposals were summarized at a Council meeting in early 2006. Following that meeting, two leading proposals emerged — the Protect our Parks proposal and the Harbor Commission's proposal. A 3- member Council team (including Council Member Selich, Council Member Ridgeway and Mayor Webb) later convened the Marina Park Working Group that included representatives of the Harbor Commission, POP, and POP's designer — Dan Herman of Rabben /Herman Design — to attempt a compromise plan out of the two leading proposals. An Agreed -Upon Concept Plan. What emerged became the Park + Marina Plan (see Attachment A). This Plan was reviewed favorably by the City Council at 'a Regular Session on October 10, 2006. At that time, the Council approved the following course of action to pursue the Park and Marina Plan: Park + Marina Plan - Planning Timeline 1. Preliminary Design (6 -8 months) with three parts: Part A --- Testing the Concept. Includes Record of Survey, determination of utilities, harbor lines, etc -- basically determining how the Plan fits on the site, looking for fatal flaws, getting it ready for Part B (additional community outreach). Part B -- Additional Community Outreach. Assuming concept plan will work physically and practically, we would embark upon an additional community outreach period (may include an additional public meeting, one or more mailings to the community and to interested stakeholders, more). Part C -- Refinement. Design team refines the plan based on community and council input and prepares the concept plan for formal Council consideration, including CEQA (California Environmental Quality Act) requirements. This part would include a summary of what permits will be required, what agencies need to be consulted, and what funding sources are available. A project cost estimate (including design, permitting, and construction) should be part of this, too. Design. Contract with RabbenlHerman Design for Park + Manna Plan November 14, 2006 Page 3 During this same period, City staff would work on an amendment to the City's lease with the American Legion to reflect the Plan's impacts on the Legion's facility (as well as the City commitments made within the Memo from Mr. Selich and Mr. Ridgeway). 2. Design Development. & Permitting (12 -18 months). The concept plan would be brought up to construction. documents, with all CEQA work done and all permits achieved. A funding plan would be developed and implemented along with Phase ll. 3. Construction (24 -36 months). With design development complete and a financing plan in place, the project would be put out to bid for construction,. including, construction management. Depending upon funding, construction may occur in up to three phases. The Working Group believes that Dan Herman of RabbenlHerman Design is the appropriate consultant to continue working on this Plan (with additional: subconsultants [including Cash.and Associates, ,.a specialized firm experienced in marina design] under R/H Design's lead). They believe this because: • RabbenlHerman Design led the Protect our Parks (POP) design effort throughout the initial review process; • RabbenlHerman Design later was hired by the City at the recommendation. of the Working Group to incorporate the visitor- serving marina concept into the POP plan; • RabbenlHerman Design has more familiarity with the site and the proposed plan than any other vendor, • RabbenlHerman Design has been found by Public Works to be among the leading firms in designing this type of Project; This Agenda Item. This Agenda.ltem asks: 1. For the Council's authorization to enter into a PSA for $85,000 with RabbenlHerman Design for the Scope of Work (attached) that would bring the Park + Marina Plan through Preliminary Design; 2. That the Council rescind a previous resolution (Resolution 2005 -04) that formed Marina Park's planning committee. Tonight's action would create a new Committee to focus assisting the City with the design of the Park + Marina Plan; and 3. For a Budget Amendment of $90,000 (allowing a $5,000 contingency) to fund the RabbenlHerman scope of work.. Funding. As noted, this effort requires a Budget Amendment in the amount of $90,000. Submitted by: DAVE KIFF Assistant City Manager ATTACHMENTS: A — Park + Marina Plan B — RabbenlHerman Professional Services Agreement, including Scope of Work, Project Schedule, and Fee Schedule C — Resolution 2006-_ D — Budget Amendment MW�vq 11 . uwv.��..vvtii�� revue is ATTACHMENT A Park + Marina Plan Concept Plan r� u Marina Park Concept Plan «wbw •rww�ww w.y� ae�.� V�TV MtlY'b IM{a�BW�G I TN CPyWNVwpwlBwvll�G snhObvl M�`Pnb r, u • Design Contract with RabbenlHerman Design for Park + Manna Plan November 14, 2006 Page 5 ATTACHMENT B PROFESSIONAL SERVICES AGREEMENT WITH RABBEN- HERMAN DESIGN (with Exhibits A, B, and C) PROFESSIONAL SERVICES AGREEMENT WITH RABBENIHERMAN DESIGN FOR MARINA PARK DESIGN WORK THIS AGREEMENT is made and entered into as of this 1st day of December, 2006, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and RABBENIHERMAN DESIGN a California Corporation whose address is 833 Dover Drive, Newport Beach, California, 92663 ( "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 is planning to design for a re -use project including a park and a marina at City's Marina Park property. C. City desires to engage Consultant to conduct preliminary design work for the Marina Park project ( "Project'). 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 Dan Herman. 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 December, 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. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner in general accordance with the Schedule at Exhibit B. The failure by Consultant to perform the services in a diligent and timely manner 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 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 Eighty-Five Thousand Dollars and no /100 ($85,000.00) 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 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 4.2 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. 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 C. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 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 DAN HERMAN 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 3 This Agreement will be administered by the Public Works Department. STEVE BADUM, PUBLIC WORKS DIRECTOR (or his designee) 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. T. 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 blueprinting and other services through City's reproduction company for bid documents. 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. 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 2 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 negligently 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 active 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. 5 11 12. 13. 14. 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. 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. 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. 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'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. R 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 Liabilitv 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 Liabilitv 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. 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 7 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. 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) 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 N 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. 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. All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings, and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. 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 M 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 in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. 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. 22. 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. 23. 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 10 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. 24. 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. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. 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. 27. 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: Steve Badum, Director Public Works Department 11 City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3311 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Dan Herman Rabben /Herman design office 833 Dover Drive, Suite Nine Newport Beach, CA 92663 phone (949) 548 -3459 (X 22) email: danh @rhdo.com 28. 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. 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. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER 12 31. 32. 33 34. 35. 36. 37. 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. 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. 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. 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. 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. 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. 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. 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. 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 Attorney for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH, A Municipal Corporation :2 Mayor for the City of Newport Beach CONSULTANT: By: By: LaVonne Harkless, Dan Herman, Rabben /Herman Design City Clerk Attachments: Exhibit A — Scope of Services Exhibit B — Project Schedule Exhibit C — Schedule of Billing Rates F:luserslcatl sharedl AglPRofServices \FinaNersion0 8-30 -04. doc 14 Design Contract with Rabben/Herman Design for Park + Marina Plan November 14, 2006 Page 6 EXHIBIT A SCOPE OF WORK The Master Planning for Marina Park (including the adjacent American Legion property) is envisioned to be completed in three sequential phases, (1) a Feasibility Refinement Phase of the current Vision Plan, (2) Public Meetings and Workshops, and (3) Final Master Plan. This proposal is for the first phase - Feasibility Refinement. In summary, the Feasibility Refinement phase will: • Identify all of the site opportunities and constraints. • Obtain a site survey and research existing utilities and easements that may affect the project. • Confirm the program developed during the previous planning efforts R /Hdo conducted in conjunction with the City of Newport Beach and Protect Our Parks. • Develop a refined Concept Plan. The Public Meetings and Workshops phase will be organized and led by the City of Newport beach and include a series of Public Workshops with neighborhood groups and stakeholders as well as meetings with governmental agencies having jurisdiction over the project. The Final Master Plan will incorporate the issues identified in the public meetings and workshops and with the review agencies. The Final master Plan task may also include more detailed analysis of traffic and parking, refined architectural plans for proposed buildings, analysis of funding opportunities, phasing plans and other as yet undefined products. As the current plan has been prepared under the direction of a City Council Committee and the Assistant City manager, and also included representatives of Protect Our Parks, we suggest the City consider organizing a Steering Committee with some of these same members as well as representatives of the Public Works and Parks Departments. We would meet with this group throughout the process to review findings and get direction. We also envision working with a separate small group specifically for the refinement of the American Legion facilities. Results of these workshops would be shared with the City Steering Committee. The scope of work for all three tasks would include the proposed Marina Park site and the adjacent American Legion site. Planning and design for the American Legion site would include the parking area, outdoor use areas, and the American legion marina, but would not include modifications to the American Legion building. The Scope of Work does not include any effort related to the mobile homes or the relocation of the present residents. The following Scope of Work describes work to be performed by the R /HDO team during the Feasibility Refinement Phase of the project. This phase of work includes a number of meetings with the project team; analysis of development opportunities and limitations of the site; preparation of a development program; preliminary design concepts of , the sailing center and marina, recreation facilities and support facilities; preliminary infrastructure planning; development plan preparation; preliminary development costs; and a summary report. The R /HDO team will be responsible for the following tasks as indicated in Task Network (Figure 2), except as noted. Task 1. Kickoff Meeting A kick -off meeting will be held to begin the project and allow the consultant team and the City of Newport Beach team to organize and confirm the project schedule, review the scope of work, and establish the planning horizon for the study. In addition, the meeting will allow the consultant to collect and review all of the relevant site information held by the Owner. Design Contract with Rabben/Herman Design for Park + Manna Plan November 14, 2006 Page 7 a. Participate in the first team meeting with other team members to review the project schedule, the . scope of work, confirm the current program, and establish the clients project objectives. b. During the initial meeting the Owner should have collected all identified information to transfer to the Owner team. The information will be catalogued and reviewed during the initial meeting. Task 2. Site Survey TO BE ADDED Task 3. Site Analysis Development opportunities and limitations for the property will then identified based on information to be collected or supplied by the City, other consultants, and site visits. a. Conduct initial and subsequent site visits as may be required. b. Review and analyze available information on natural factors such as geology, climate, hydrology, littoral and oceanographic conditions, soils, ecology, vegetation, natural hazards, fish and wildlife, historical /cultural and visual character of the site and its surroundings. C. Review and analyze available information provided by Client on man -made factors such as existing land use, zoning, access/circulation and traffic. No additional traffic analysis would be undertaken in this phase of the project. d. Collect available records from the City of Newport Beach and utility companies to document existing utilities and easements on the site. This information will be plotted on the site survey. e. Meet with Planning Department officials to discuss development controls and requirements (density, height restrictions, etc.), environmental issues, required approvals and development schedules. Identify any potential issues related to the LCP or General Plans. f. Prepare a development opportunities and limitations summary for the property based on this information. Task 4: Programming A preliminary development program will then be prepared for the major components of the project. Much of the program has been defined as part of earlier efforts but this phase will document and test those findings. Particular emphasis will be given.to the development of the program for the Aquatics and Community center facilities. The programming will not define the detailed requirements for the Girl Scout House, but would identify a preferred site size. a. Prepare a detailed development program, including the number, size, and quality of proposed facilities and uses including accommodations, special uses, recreation uses, support facility, infrastructure, and other uses. 1) Overall square footage and specific uses for.the proposed Community Center and the Aquatics Sailing Center Design Contract with RabbervHerman Design for Park + Manna Plan November 14, 2006 Page 8 2) Number and size of slips for the City operated marina. 3) Number and size of slips for the American Legion marina. 4) Detailed requirements foe the Youth Sailing Center including dry storage, dock tie up, on dock storage, dingy dock requirements, etc. 5) Support requirements (crane, fuel pumps, clean out areas, etc) for the City marina. 6) Number and size of on site restrooms. 7) Size and general description of playground. 8) Beach related facilities (fire pits, volleyball nets, swim zones, etc) 9) Recreational facilities including the number of tennis courts, basketball courts and other not yet identified facilities. 10) Number of parking spaces for Marina Park and the American Legion. b. The preliminary program would be reviewed with the project team and be utilized to prepare the refined Concept Plan. Task 5. Refined Concept Plan Based on the development opportunities and constraints, the final site survey, utility information, and the preliminary program we would refine the current Vision Plan for Marina Park. We would work closely with City staff and the American Legion to prepare the plan refinements. a. A scaled plan, prepared at 1" 20' -0 ", would be prepared for the Marina Park and American legion site. The plan will accurately identify, at a concept level, the size, character and location of all proposed facilities. This will include both the City and American Legion marina and dry side facilities, the City Youth Sailing Center water and dry side facilities, the Aquatic and Community Center Facility(s), all recreational facilities, parking and access, pedestrian circulation and landscape concepts. b. Develop a conceptual floor plan for the proposed Youth Sailing Center /Community Center facility. C. Evaluate these plans with Client and other team members based on the development objectives established at the first team meeting and other considerations. d. Refine the Concept Plan as required and prepare an Illustrative Plan, sections, elevations and two sketches illustrating the design and character of the proposed project. Task S. Infrastructure Planning Preliminary planning of infrastructure improvements to a master planning level will be provided during this phase based on the development program, building concepts, and recreation facilities. a. Estimate preliminary infrastructure requirements based on the development program for roads, drainage and storm control, potable water, non - potable water (if appropriate), wastewater, electrical power, communications and solid waste. Design Contract with RabbenMerman Design for Park +Manna Plan November 14, 2006 Page 9 b. Prepare infrastructure concept plan indicating the location of major infrastructure components. Task 7. Estimate of Probable Cost A preliminary estimate of probable cost will be prepared in collaboration with Client and other team members based on the final development plan. Separate estimates will be prepared for Marina Park and the American Legion properties. a. Prepare an itemized list of improvements to be included in the estimate of probable cost. b. In collaboration with other team members, assist in preparing the estimate based on the itemized list above, local construction costs, and other information. Task 8. Team Meetings Formal team meetings will be held throughout the project in order to establish the direction of the project, visit the site, meet with local officials, request and exchange information, discuss preliminary results and present the final products. In addition informal meetings will be held with City staff to collect information, develop the program a. Participate in the first team meeting (Kick -off) with other team members to establish development objectives, visit the site and gather information. b. Participate in second progress review meeting to review the preliminary program. C. Participate in third team meeting to review the refined concept plan and other information. d. Participate in fourth team meeting to present final products and conclusions. Task 9. Final Summary Report A final Summary Planning report (10 copies) will be prepared summarizing findings, conclusions and recommendations of the previous tasks. This report will be of photocopy quality and will include text, illustrations (in color) and photographs. A reproducible set of plans will also be provided. The following products will be provided at the completion of this study: a. Site analysis maps including development opportunities and limitations; b. Preliminary development program; c. Concept diagrams of Community Center/Youth Aquatic Center, special uses, recreational facilities and supporting uses with illustrative sketches; d. Development plan and illustrations; e. Development estimate of probable cost; and f. Final summary report. Design Contract with RabbenrHerman Design for Park + Manna Plan November 14, 2006 Page 10 Exhibit B PROJECT SCHEDULE The work as described in the Scope of Work will be performed generally according to the Project Schedule (Figure 3) within 10 to 12 weeks from receiving the notice to proceed, assuming timely review and comments are received by Client. TO BE ADDED r1 �J • 41 • Design Contract with RabbenMemoDesign for Park + Manna Plan November 14, 2006 Page 11 Exhibit C FEES AND PAYMENT SCHEDULE A. Fees We will perform the Scope of Work as described for a proposed fee of $85,000 net of all local taxes, duties and levies, plus travel and other expense costs which will be paid in addition to this fee. This fee excludes any fees for other consultants, which may be hired independently by Client. For information purposes this fee is allocated as follows: 1 Project Kickoff 8 0 0' ' $800 $0 $0 $800 2 Site Survey a $800 - $21,000 $21,800 3 Data Collection 40 8 24 and Analysis $4,000 ,,4009 $3,000'; $7,800 4 Programming t6�� fl 8 $1,600 54a0 0 $1,000 $6,600 5 Refined Concept Plan 80 40 80 Illustrative Support $0 40. - Povs 40 120 80 80 $12,000 $8,900.- $10,000 -, $30,000 6 Utility Plans 8 =` Oo _ $800 $0, # $01a �- $800 7 Cost Estimate 12 40 $1,200 `� +ix': *.$0,' $5,000!' $6;200 8 Meetings 40 24i 24 $4,000 ?: $2,400 $3,000 $9,400 9 Final Report 16 $1;600 $1,600 Totals $26,800 $15,200 $22,000 $21,000 $85,000 B. Expenses Our proposal fee above includes labor cost and incidental project expenses. Other costs beyond our proposed services, if requested by Client, would be paid in addition to the fee such as: 1. Architectural models and marketing brochures - quality illustrations. 2. Work on the subsequent project phases: (2) Public Meetings and Workshops, and (3) Final Master Plan. Design Contract with Rabbervtlerman Design tbr Park + Marina Plan November 14, 2006 Page 12 RESOLUTION 2006- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REPEALING RESOLUTION 20054 AND ESTABLISHING THE CITY COUNCIVCITIZENS ADVISORY COMMITTEE ON MARINA PARK DESIGN WHEREAS, the City of Newport Beach owns the property located on the Balboa Peninsula between Newport Bay and Balboa Boulevard and between 181" and le Streets; commonly known as Manna Park; and WHEREAS, the City Council of the City of Newport Beach planned for the future use of this property in accordance with State and local laws and using a community-based process involving a Council- Citizens Ad Hoc Committee on Marina Park Planning, as established by Resolution 20054; and WHEREAS, the City Council recognizes the importance of the Marina Park property to the community and the variety of community needs and desires that can be met with a proposed concept plan that includes a park and a visitor - serving marina; and WHEREAS, the City Council wishes to establish community- and stakeholder -based team to assist in the design of the preferred re -use plan; now, therefore be it RESOLVED that the City Council of the City of Newport Beach hereby rescinds Resolution 2005- 4 and declares the following: SECTION 1. ESTABLISHMENT The City CounciltCitizens Advisory Committee on Marina Park Design (Committee) shall be established as of the date this Resolution is approved by at least four members of the City Council voting at a duly noticed meeting of the City Council, and the Committee description attached to this document as Exhibit A shall be placed in the City's Boards, Committees, and Commissions listing. SECTION 2. DUTIES The Committee shall have the following duties: A. Assist the City Council and City staff in reviewing the work product of consultants hired to design the Marina Park reuse project; B. Advise the Council as needed as to community and stakeholder interests associated with the Marina Park reuse project SECTION 3. COMPOSITION The Committee shall consist of the following members appointed by, and serving at the pleasure of, the Mayor. Two (2) City Council Members; One (1) member of the Protect Our Parks organization; One (1) Harbor Commissioner; One (1) Parks, Beaches and Recreation Commissioner; One (1) designee from the American Legion Post 291; One (1) designee from the Girl Scout Council of Orange County; Design Contract with Rabben44erman Design for Park + Manna Plan November 14, 2006 Page 13 One (1) person from an area sailing or rowing organization; and One (1) neighborhood representative. SECTION 4 TERM The term of the Committee shall expire at such time as the design work for Marina Park is complete. ADOPTED this 14th day of November, 2006. Design Contract with Rabben/Herman Design for Park + Manna Plan November 14, 2006 Page 14 EXHIBIT A CITY COUNCIUCITIZENS ADVISORY COMMITTEE ON MARINA PARK DESIGN AUTHORIZATION: Established by Resolution No. 2006-_, adopted on November 14, 2006. MEMBERSHIP: The Committee shall consist of the following nine members appointed by, and serving at the pleasure of, the Mayor: Two (2) City Council Members; One (1) member of the Protect Our Parks organization; One (1) Harbor Commissioner; One (1) Parks, Beaches and Recreation Commissioner; One (1) designee from the American Legion Post 291; One (1) designee from the Girl Scout Council of Orange County; One (1) person from an area sailing or rowing organization; and One (1) neighborhood representative. TERM: Shall expire at such time as the design work for the Marina Park Project is complete. PURPOSE & RESPONSIBILITIES: A. Assist the City Council and City staff in reviewing the work product of consultants hired to design the Marina Park reuse project; B. Advise the Council as needed as to community and stakeholder interests associated with the Marina Park reuse project. City of Newport Beach BUDGET AMENDMENT 2006 -07 . =ECT ON BUDGETARY FUND BALANCE: Description Division Increase Revenue Estimates X Account Increase Expenditure Appropriations AND 8080 Services - Prof & Tech NOC Division Transfer Budget Appropriations SOURCE: Account Number from existing budget appropriations PX from additional estimated revenues Number from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 07BA -026 AMOUNT: 590,000.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase expenditure appmpdations to enter into a contract with Rabben /Herman Design for preliminary design work for the Park + Marina Plan. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Accoun t Description 010 3605 General Fund - Fund Balance REVENUE ESTIMATES (3601) Fund /Division Accoun t Description EXPENDITUREAPPROPRIATIONS (3603) Signed: Finknci Approval: Admi in st 've Services Director Signed: Administrative App val: City Manager Signed: City Council Approval: City Clerk Amount Debit Credit 590,000.00 ~ Date IDaV Date Description Division Number 7510 Marina Park Enterprise Account Number 8080 Services - Prof & Tech NOC Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: Finknci Approval: Admi in st 've Services Director Signed: Administrative App val: City Manager Signed: City Council Approval: City Clerk Amount Debit Credit 590,000.00 ~ Date IDaV Date