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HomeMy WebLinkAboutBillick, Donna - 2003-02-18PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND DONNA BILLICK, dba BILLICK ROCK ART FOR SOUTH BEACH, PHASE II, ART ELEMENTS THIS AGREEMENT ("Agreement") is made and entered into this 2-`1 day of .�.., - 2003, by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY, and DONNA BILLICK, dba BILLICK ROCK ART, a sole proprietorship hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of a consultant to design, fabricate and install art elements; and Pursuant to documentation on file in the office of the City Clerk, the provisions of the Huntington Beach Municipal Code, Chapter 3.03, relating to procurement of professional service contracts have been complied with; and CONSULTANT has been selected to perform these services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows: I. SCOPE OF SERVICES CONSULTANT shall provide all services as described in Exhibit "A," which is attached hereto and incorporated into this Agreement by this reference. These services shall sometimes hereinafter be referred to as the "PROJECT." CONSULTANT hereby designates Donna Billick who shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement. 2. CITY STAFF ASSISTANCE CITY shall assign a staff coordinator to work directly with CONSULTANT in the performance of this Agreement. 03agree/rock art/6/4/03 I 3. TERM; TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of CONSULTANT are to commence as soon as practicable after the execution of this Agreement by CITY (the "Commencement Date"). This Agreement shall expire on April 7, 2004 unless sooner terminated as provided herein. All tasks specified in Exhibit "A" shall be completed no later than 11 months from the Commencement Date of this Agreement. These times may be extended with the written permission of CITY. The time for performance of the tasks identified in Exhibit "A" are generally to be shown in Exhibit "A." This schedule may be amended to benefit the PROJECT if mutually agreed to in writing by CITY and CONSULTANT. 4. COMPENSATION In consideration of the performance of the services described berein, CITY agrees to pay CONSULTANT on a time and materials basis at the rates specified in Exhibit "B," which is attached hereto and incorporated by reference into this Agreement, a fee, including all costs and expenses, not to exceed Three Hundred Eight Thousand Dollars ($308,000.00). 5. EXTRA WORK In the event CITY requires additional services not included in Exhibit "A" or changes in the scope of services described in Exhibit "A," CONSULTANT will undertake such work only after receiving written authorization from CITY. Additional compensation for such extra work shall be allowed only if the prior written approval of CITY is obtained. 6. METHOD OF PAYMENT CONSULTANT shall be paid pursuant to the terms of Exhibit "B." 03agree/rack aW6/4/03 2 7. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that title to all materials prepared hereunder, including, without limitation, all original drawings, designs, reports, both field and office notices, calculations, computer code, language, data or programs, maps, memoranda, letters and other documents, shall belong to CITY, and CONSULTANT shall turn these materials over to CITY upon expiration or termination of this Agreement or upon PROJECT completion, whichever shall occur first. These materials may be used by CITY as it sees fit. 8. HOLD HARMLESS CONSULTANT hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with CONSULTANT's (or CONSULTANT's subcontractors, if any) negligent performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by CONSULTANT, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. CONSULTANT will conduct all defense at its sole cost and expense and CITY shall approve selection of CONSULTANT's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by CONSULTANT. 03agree/rock a&6l4103 3 9. PROFESSIONAL LIABILITY INSURANCE CONSULTANT shall obtain and furnish to CITY a professional liability insurance policy covering the work performed by it hereunder. This policy shall provide coverage for CONSULTANT's professional liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. The above -mentioned insurance shall not contain a self -insured retention, "deductible" or any other similar form of limitation on the required coverage except with the express written consent of CITY. A claims -made policy shall be acceptable if the policy further provides that: A. The policy retroactive date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). B. CONSULTANT shall notify CITY of circumstances or incidents that might give rise to future claims. CONSULTANT will make every effort to maintain similar insurance during the required extended period of coverage following PROJECT completion. If insurance is terminated for any reason, CONSULTANT agrees to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this Agreement. 10. INSURANCE In addition to the workers' compensation and employer`s liability insurance and CONSULTANT's covenant to defend, hold harmless and indemnify CITY, CONSULTANT shall obtain and furnish to CITY, a policy of general public liability insurance, including motor vehicle coverage covering the PROJECT. This policy shall indemnify CONSULTANT, its 03agree/rock at16/4/03 4 officers, employees and agents while acting within the scope of their duties, against any and all claims arising out or in connection with the PROJECT, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000) for this PROJECT. This policy shall name CITY, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the PROJECT shall be deemed excess coverage and that CONSULTANT's insurance shall be primary. Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. 11. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE Pursuant to California Labor Code Section 1861, CONSULTANT acknowledges awareness of Section 3700 et seq. of this Code, which requires every employer to be insured against liability for workers' compensation; CONSULTANT covenants that it will comply with such provisions prior to commencing performance of the work hereunder. CONSULTANT shall obtain and furnish to City workers' compensation and employer's liability insurance in an amount of not less than the State statutory limits. CONSULTANT shall require all subcontractors to provide such workers' compensation and employer's liability insurance for all of the subcontractors' employees. 03agreehock arU6/4/03 5 CONSULTANT shall furnish to CITY a certificate of waiver of subrogation under the terms of the workers' compensation and employer's liability insurance and CONSULTANT shall similarly require all subcontractors to waive subrogation. 12, CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMETS Prior to commencing performance of the work hereunder, CONSULTANT shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; the certificates shall: 1. provide the name and policy number of each carrier and policy; 2. state that the policy is currently in force; and 3. promise to provide that such policies will not be canceled or modified without thirty (30) days' prior written notice of CITY. CONSULTANT shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverages shall not derogate from the CONSULTANT's defense, hold harmless and indemnification obligations as set forth under this Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of all the policies of insurance. CONSULTANT shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. CONSULTANT shall provide a separate copy of the additional insured endorsement to each of CONSULTANT's insurance policies, naming CITY, its officers, elected and appointed officials, employees, agents and volunteers as Additional Insureds, to the City Attorney for approval prior to any payment hereunder. 03agree/rock aW6/4/03 6 13. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of CITY. CONSULTANT shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder. 14. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and whether or not the PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. In the event of termination, all finished and unfinished documents, exhibits, report, and evidence shall, at the option of CITY, become its property and shall be promptly delivered to it by CONSULTANT. 15. ASSIGNMENT AND DELEGATION This Agreement is a personal service contract and the work hereunder shall not be assigned, delegated or subcontracted by CONSULTANT to any other person or entity without the prior express written consent of CITY. If an assignment, delegation or subcontract is approved, all approved assignees, delegates and subconsultants must satisfy the insurance requirements as set forth in Sections 9 and 10 hereinabove. 03agreelrock arV6/4/03 7 16. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement. 17. CITY EMPLOYEES AND OFFICIALS CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 18. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONSULTANT's agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. CITY and CONSULTANT may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, a reputable overnight carrier or U. S. certified mail -return receipt requested: TO CITY: City of Huntington Beach ATTN: Eric Charlonne 2000 Main Street Huntington Beach, CA 92648 TO CONSULTANT: Donna Billick dba Billick Rock Art 35301 Road 31 Davis, CA 95616 03agree/rock arU6/4/03 8 0 19. CONSENT When CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. 20. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 21. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 22. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as 03agreehock arti6AI03 9 0 to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 23. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 24. IMMIGRATION CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United .States Code regarding employment verification. 25. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONSULTANT and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT. 03agreelcack art 6A103 I0 26. ATTORNEY' S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non -prevailing party. 27. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. 28. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 29. ENTIRETY The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arms length negotiation, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement, and supercede all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof. 03agreclrock artW4103 11 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. DONNA BILLICK, dba BILLICK ROCK AR By: i Donna Billick, proprietor CITY OF HUNTINGTON BEACH, a municipal corpo;.tion of the State of California y,fy'e.. Director of (Pursuant Tol A4 lie Works C §3. 03.100) APPROVED AS TO FORM: City A o ey 07 REVIEWED AND APPROVED: c;�" Y Cit Administrator (only for contracts $50, 000.00 and over) 03agree/rock aW6/4/03 12 CONTINUE FROM PREVIOUS PAGE 001 lvwr%rla W%w M rrsWw qh" awv1r jw%a rarip��I • Huntington Beach California/South Beach Phase 11 Artist: Donna Billick Purkiss -Rose-RSI "Billick Rock Art" concepts for the Phase 11 South Beach Strand; verbal description of deliverables. "Surfing USA" is a collection of 14 surf boards; three 10' long boards, four of the 8', three short boards, two boogie boards,, two skateboards, and a bronze guitar. The medium will be terrazzo, granite, sal, and cer ent. The collection of international flag emblem boards will be anchored and engineered to attach to the concrete block, stucco wall below the viewing port. "Beach Play", is a pebble mosaic, mortared and grouted along the sloped ramp areas between the wheel chair walkways. This 65' long pedestrian} handicap ramp site is desigtated to carry images articulated out of stone of all types and stamped concrete elements to depict Bolsa Chica birds and ocean animals as well as sun; waves, surfers and swimmers. Purkiss-Rose-RSI will surface these areas with concrete skins, perfectly suited to receive a than -set adhesive application of stones. With a colored grout and sealer finish. "Rescue Plaza" is a community build concept. We will conduct workshops to build hand made tile and mosaic elements to completely cover the snack bar wall above the base rock cove at the Jr. Lifeguard Building. The mosaic murals will '-� also come around the front of the building to the door entry on the right hand side. In addition the retaining wall across the back of "Rescue Plaza' and step risers will be surfaced with mosaic elements. There will be a "Whale Tail" bench that will seat four. The dimensions will be S' Wide by 31figh by 41 /2' Deep. This would be fabricated out of rebar and cement and skinned with terrazzo and ground to a smooth finish. "Dive -In Plaza" is about the total emersion into the Huntington Beach environment. Central to the plaza will be a bronze diver figure with fin;8' high anchored to the cement paving. Radiating out froth, this figure will be rings of terrazzo pavers with mosaic images from Bolm Chica and Huntington Beach. The terrazzo elements will be inlayed into gin bomanite cement coverage of "Dive -In Plaza". The area outside of the circular plaza will be turf, as per plants, in this area will appear an interactive terr=o seal sculpture, "The Great Seal of California" 31/2 ` high by 4' wide by 5' deep. Donau Billick 02/10/2003 22, 09 _ 5307534677 _ BFLL.ICK PAGE 01 Huntington Beach Califoml:South Beach Phase II Artist -Donna Biliick ;9iifick Rack Art" proposals and budget amounts associated with the Phase II SotAh Beach Strarnd. "Surfing USA" is a colleclion of 14 surf boards; three 1U long boards, four of the 8' length boards, three short hoards, two boogie boards, two skateboards, and a bronze guitar. The medium w0l be terrazzo, granite~ steel and cement. The collection of international flag emblem boards wiB be anchored and engineered to attach to the concrete block, stucco wall below the Awing port, "Surfing LISA" Total Budget $84,000 "Beech Platy", is a pebble mosaic, matawl and grouted alaig the 9kVpW ramp areas between the wheel chair walkvmys. This 66 tong pedestrian handicap ramp site is designated to carry images articulated out of stone of all types and stamped concrete elements to depict Balsa Chlca birds and ocean animals, as well as sun, wares, surfers and swimmers. Purkiss-Rose-RSI will surface these areas with a concrete skin, pefttly suited to receive a thin -set adhesive application of stones. "Beach Play" will be grouted with colored grout and a sealer finish! "Beach Play' Total Budget $90,OW "Rescue Plaza" Is a community build concept for the new Jr, t.ifb"rd Building Plaza area. We will conduct workshops to build hand make the and mosaic elements to completely cover the snack tsar wall above the hose rock core at the Jr, Li%uard BWding, line mosaic murals wilt also come around the front of the building to the door entry on the right hand side. In addition the retaining wait across; the back &.Rescuue Plaza" and step risers will be sufted with mosaic elements There will be a "Whale Tail' bench Not will seat four. The dimensions will be O' Wide by THigh by 4112 'Deep. This would be fabricated out of rebar and cement and skinned with terrazzo and ground to a smooth finish. "Rescue Plaza" Total Bridget $78,0W "Dove - In Plata" is about the tots emersion into the Huntington Beach environment, Central to the plaza will be a bronze diver figure with fins, B'High anchored to the cement paring. Radiating out *om this figure wilt be rings of terrazzo patter with mosaic images from Botsra Chico and Huntington Beach. The tenszxo elements will be inlayed Into green bomanhe cement coverage of "Divest Plaza" The area outside of the circular plaza will be turf, in this area will appear an Interactive terrazzo seal sculpture. nbe Great Seal of Calft9" 3 112 high be 4%Mde by 5Weep. "plus-ln Ptazar Total Budget W,000 Dan" Slumik 3S301 Read 33, Drawk tall 99616 - (630) 7534 677 c� m 0 r- rn m m South Beach Phase II August Senternbv October hlnvember December January Surfing USA. Steel frames welded Make PolyUrethene Cut all granite and f ix terrazzo samples Anchors fabricated for wall molds pf longboards, Cast rebar frames marble mosaic units for recipes to be used shortboards.booMe into concrete cores for flag emblems. to cast terrazzo surf - Order Terrazzo Stare board. and sk2te_ of all 14 boards. boards. from quaries. board. Tian set mosaic pieces Cast and grind two to the concrete ore Order grinders and strfboards. castings of boards. diarrrand polishing i tment Beach Play Enlarge model full size. Build frames for Pre -cast rigures. Design details for pre -cast. pre -cast elements. Assemble pebble Pre -cast bird. Pre -cast fish. mosaic InIages of Order vofurnnes of multicolor shore birds from pebbles. W02 Chfca. Rescue Plaza July and August Will be kiln fire all workshop Enlarge to fWl size time for workstWs for the items. the designs for panel Metal fabrication for Weld rebar frame : r Jr. Lifeguard program to "Whale Tale', create handmade tiles. Design rrvural co9rrtpos- fabricate stainless itions for Jr. l_ife- Assemble mosaic Assemble mosaic steel anchor system. Purse Moaalc Tiles guard boAding and panels. panels. Assemble mosaic retaining wall. panels. Wire wlt#r three oocr'ses the "Whale Ts Moe In Plaza Weld steel frame for "Great Pax* o m int and sand Pour a wax and erst Seal of Callforrrra" Clay script figure of mixture into wire Potywetharte m old an iriM trneni form Cut mosaic images "Oive -In". frame fWGreat for "Diver for preparation to out of gr-anhe and Seat of CaVox�" Bronze diet "Dial. thWo t to paver unit "Great Se2I" proc. Order granite for patters. *tire steel fsarria %% th three courses for faro-cemer:t m m 0 to r- m LO r- cn m M m m m m Q February Match Aorti Mav June July Aunust Cast and grind two Cast and grind two Bronze cast guitar. surfboards. boogie boards. Cast and grind two Cast and grand two Cast and grind Cast and grind two surfboards, surfboards. Cast and grind two two surfboards. Polyurethane guitar surftards. surfboards. for Bronze casting. Stamp and stain pre - Build templates for cast elernpnt. Fit full size dreaWng Ito full size installation. Design and weld steel the "Beach Play". stamps For concrete Complete precast units Image irwressions. for "Beach Play" C;r#rfd surface of End of June and Month of July collect J "5wirrit Me. Assemble panels fur mosaic elements for the steps of Jr. Lifeguard walls. "Rescue Plaza". Second session of workshops at the site. Terrazzo cast and f Insulation of steps at Concrete "Whale grind "Whale Tail". I Tail" for core structure. Installation: of rrura#s If the Jr. Lifeguard bulk A* is .rep Cast and grind pavers Cas" of AN paver units for a late fall 2003 instalistlon. Cast ta"zzo on 'Great for "Dive-fn% Cast and grind p-avem I I Seat" Grind "Great Seal" for'DNe-in". Co-wdnston with contractor to have plywood WNs for flush kvW Cast paver units Yvith mosaic images. 03/10/2003 03:57 5307534677 "Surfing USA" Artist: Donna Billick Budget (1) Auto Cad, Engmi eering, Design Costs Auto Cad 60 bours at $45 per hour Shop Drawing for structural steel. Design, enlargement for placement along wall Trips to Huntington Beach for design purposes Insurance BILLICK • $2,700 $1,800 $3,500 $800 $300 Total Design Costs $10,800 (2) Costs associated with fabrication, labor and installation Material polyurethane, fiberglass all molding materials for boards S2,400 Cement, said aggregate $2,200 Mason stains for terrazzo $1,100 % " granite and marble for mosaics $1,600 Terrazzo stone $3,000 Brass -strips S 1,200 Tools, grinders, diamond polishers $2,600 Sealer S700 Materials costs $147800 Labor All bronze elements, guitar and skateboards $7,000 Polyurethane molds for five styles of board $6,000 Steel frames, structural and anchors, Joyce Brothers Metal $7,000 Casting all concrete core and steel elements $10,000 Mosaic assembly and tem= casting $12,000 Grinding and grouting $5,400 Application of sealers $1,000 Labor for installation S6,200 Labor Costs S54,600 Installation Transportation of crew and an Equipment for foundation, Cervent for installation "Surfing USA" Total Budget $94,000 $2,500 $800 S500 S3,800 PAGE 04 03/10/2003 03:57 5307534677 BILLICK PAGE U5 "Beach Play" (1) Auto Cad, design, engineering Costs. Auto Cad 50 hours at $45 per hour $2,250 Engineering $800 Design, and egging all elements S7,000 Insurance $3 00 Transportation to site for design and fit to site. $800 $11,150 (2) Costs associated with fabrication: materials, labor and installation. Pebbles S8,(100 Adhesive and mortars $4,350 Molding materials for prefabricated elements $2,000 Metal for reinforcement $600 Cement, sand and mason stains $3,800 Tools and equipment $4,500 $23,250 Labor Pre -cast elements in studio $18,100 On site installation S20,800 $38,900 Installation Transportation of crew, pre -cast and materials $4300 Housing of crew in Huntington Beach $7,000 Rental of storage for staging ixstallation $3,000 Equipment for installation S2,400 S 16,700 Total budget for "Bench Play" $90,000 CONTINUE FROM PRO I CUS PAGE 001 0 0 "Dive Id' t. (1) Auto cad, design, engineering. Auto Cad 50 hours �;a $45 $2,250 Engineering $1,200 Design of pavers. $4,000 Insurance $300 $7,750 (2) Costs associated with fabrication,16bor and installation. Polyurethane molds of sculpture S37000 Cernem SOO Mason, Stains $350 Terrazzo stones $27700 Crraraite and marble mosaic $1,004 Brass strip $11100 Grinding tools and diamond poUshers $2,150 Plywood for site prep $500 S11,600 Labor Subcontract figure and $ns in bronze $6,000 Metal fabrication of seal and foundation $2,500 Figure metal armature intemal $2,500 Fabrication in studio $13,000 Install labor $6,200 Installation Transportation of crew and art Crew housing for install Storage fir materials Foundation "Dive In" total budget $56,000 $30,200 $2,500 $2,000 $500 $1,450 $6450 OV16i20®3 83:57 5367534677 "Rescue Plaza„ Budget (1) Auto Cad, d+esi A engineering costs. A= Cad 40 fours Q $45 per Engineering, structural and calculations. Design of mural, and enlargement Shop drawing for whale taal insurame BZLLTCK $1,800 $1,400 $5,600 $600 $300 $10,500 PAGE 06 (2) Costs associated with fabrication, labor W installation. Tiles for mural S5,000 Cement bucker board 48 pieces at $12 per. $576 Adhesive and mortar and latex $1,400 Cement and sand for grout S900 Masan stains $450 Clay $1,800 Brushes $700 Glazes $1,800 Firing - $2,600 Haw tools $524 Racks for transport $450 Steel and rebar for whale S600 Terrazzo $800 Tools, grinders and polishers $1,400 $19,000 Labor Metal fabricator $2,500 Studio fabrication $14,000 Workshops 2 weeks $12,000 Install $5,000 $331500 Install Transportation crew wA art for workshop and install $5,000 Foundation and anchor equipnvvt and operator $3,800 Housing in Huntington. Beach for artist and crew $4,000 Storage for materials S2,200 $15,000 Project total for "Rescue Plaza" $787000 its INSURANCE AND INDEMNIFICATION WAIVER MODIFICATION REQUEST 1. Requested by: Eric Charlonne 2. Date: May 14. 2003 3. Name of contractorlpermittee: Donna Billick (Rock Art) 4. Description of work to be performed: Fabricate Art Elements 5. Value and length of contract: $308,000,_Twelve Months 6. Waiverlmodification request: Eliminate the professional Liabilty requirement 7. Reason for request and why it should be granted: Donna Billick (Rock Art) cannot obtain this type of insurance coverage 8. Identify the risks to the City in approving this waive rlmodification: Mininal, mostly art elements such as painted tiles and mock surfborads Department Head Signature Date: tm waiver ' 0419nni WR PM MAR 10 2nO3 3:26PM HP LASERJET 3200 P-2 ^ACORD,, CERTIFICAT F LIABILITY INSURA E 03�O6/200 IRODUCEA (F,SO) 592-7333 FAX (650)594-4936 Professional Ins. Assoc. Inc. Lic. #0467457 F. 0. Box 1266 San Carlos, CA 94070 THIS CERTIFICATE IS ISSUED AS A IIAATTElt Cf INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEN% EXTENIO OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW- INSURERS AFFORDING COVERAGE ".-meo Donna Billick 35301 Road 31 Davis, CA 95616 INSURERA: Hartford Ins. Co. INSURERS: State Comp. Insurance Fund INSURERC' MURER D; INSURER E-. 0T*1F147_T_e j THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ASONfE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REOUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCLJMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERM$, EXCILUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY WAVE BEEN REDUCED BY PAID CLAIMS. TYPE OF INSURANCE POLJCYNUMBER POLICY EFFECTIVE yjp LIMITS A GENERALLIABILITY x COMMERCIAL GENERALLIABILJTY CLAIMS MADE � OCCUR 5758MNA1995 03/10/2003 03/10/2004 EACHOGauRRENCE $ .1. 000 000 FIRE DAMAGE (Any one to) S 300,00 MED W (Anyme person), E 10.00 PERSONAL x ADV INJURY 1 1100010 GENERAL AGGREGATE S 2 , 000 0 GEN'LAGGR7GATELIMIT APPLIES PER POLICY PPRCOT LOG PRODUCTS -COMPIOPAGG S 1,000 QO AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS scrlsDu�,=DA�os HlREDAUTOS F C IiFRCTH, R L (n COMBINED SINGLE LIMIT (E a acditd), S BODILY INJURY (Perpetoon), S BODILY INJURY (Per aotEn)NON-OWNEDAUTOS S PROPERTY DAMAGE (Peraodderd) $ GARAGE LIABILITY ANY AUTO F.�: i�IMjs ;�tS �r �y �.A'6.1. Ar I AUTO ONLY• EA ACCIDENT 5 OTHER THAN EA ACC AUTO ONLY: AGt, S $ EXCM LLA&LITY OCCUR E�I CLAIMS MADE DE?DUCTISLF RETENTION S EACH OCCURRENCE $ AGGREGATE i S WONCERSCOMPEWATIONAND EMPLOYERS'LIAlYk1TY 169952902 09/15/2002 09/15/2003 I TOFYLRd s I I ER E,L,EACHACCIDENT S 1,000 E.L. DISEASE - EA ENKOYEd 8 1, 000 , 00 Es, DISEASE - POLICY L1NIi 15 1.000.00( OTHER DESCRIPTION OF OPEIRATIONBILOGATION9N! ICLESIESCLUSIONS AD D MY SWR3EMtNT95PVMAL RVISAONS :ertficiate Holder is nanle� as Additionay Insured per attached endorsement. Fen (10) day notice of cancellation for non-payment of premium, -I.-..v_ I is IAUUFTIONALMURED:INSURER LETTER. A GANGEL..LATIUNI Huntington Beach, Its Agents, Officers & Employees Attn: Eric 2000 Kain Street Huntington Beach, CA 92648 SHOULD ANY OF THE ABOVE DESCRIBED POLICES BE CANCELLED BEFORE THE E%PIRATION DATE THEREOF, THE lSSuM COMPANY WE.L *Vj0[%Vj" MAIL 0 GAYS WRITTEN NOTICE TO THE CERTIFICATE.IXLDER NAMED TO THE LEFT, AUTHORIZED REPRESENTATIVE Sterl i no Hann mack/MiS FAX: (714>374-1573 MAR 10 2003 3:26PM HP LRSERJET 3200 P.3 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the poiicy(les) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certlficate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. CORD 25•8 (Ttg7J MRR 1Q 2a03 3:2GPM HP LRS£R3ET 3200 p.4 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL GENERAL LIABILITY CG20100397 ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization. - THE CITY OF HUNINGTON BEACH, ITS AGENTS, OFFICERS, & EMPLOYEES (If no entry appears above, information required to complete this endorsement will be shown in the Deciarations as applicable to this endorsement,) Who Is An Insured (Section II) Is amended to include as an Insured the person or organization shown in the Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured. "PROVED" FD i JW RATK btrA CG 2010 03 97 Copyright, Insurance Services Office, Inc., 1996 Page 1 of 1 11 J rf �Y I1i~1i Council/Agency Meeting Held:2�/.4/ 3' r Deferred/Continued to. — ell Approved ❑ Conditionally Approved ❑ Denied City Clerk's Sign re Council Meeting Date: February 18, 2003 Department ID Number: PW 03-003 ,��tt,, CITY OF HUNTINGTON BEACH k'�REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION =_ i� �01 DoMMA 61LWLV 100 00 f%6 , SUBMITTED TO: HUNTINGTON BEACH PUBLIC FINANCING AUTHORITY, -- HONORABLE MAYOR/CHAIRMAN AND CITY COUNCIL - MEMBERS/REDEVELOPMENT AGENCY MEMBERS - SUBMITTED BY: RAY SILVER, City Administrator/Executive Directorvza PREPARED BY: ROBERT F. BEARDSLEY Director of Public W� JIM B. ENGLE, Director of Community Service DAVID C. BIGGS, Director of Economic Develo ent/Deputy Executive Director Ae SUBJECT: AWARD SOUTH BEACH PHASE II IMPROVEMENT PROJECT, CC- 1169 Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: Bids for the South Beach Phase II Project, CC-1169 were received and opened publicly on December 10, 2002. Staff recommends award of the contract to Weeger Bros., Inc., the lowest responsive and responsible bidder. Funding Source: Total funding in the amount of $12,312,000 is available in the following accounts: $9,795,840 from Lease Revenue Bonds, 2001 Series A (includes $9.2 million for South Beach, $360,000 from bond savings, and $235,840 for Beach Maintenance Facility construction cost reimbursement to Bond Revenue fund from the Redevelopment Agency), South Beach Improvements, Phase II Account 30187004.82200; $2,000,000 from a Coastal Conservancy Proposition .12 Grant, Account 81086001.69365; . and $142,160 from Proposition 13, Stormwater Quality Improvements, Account 89288003.82500. Additionally, $84,000 from Park Acquisition and Development Fund, $290,000 from the Pier Rebuilding Fund will be appropriated. Recommended Action s?: Huntington Beach Public Financing Authority Motion to: Authorize total expenditure of $9,795,840 from Lease Revenue Bonds, 2001 Series A to the South Beach Improvements, Phase 11 Account 30187003.82200 L� • REQUEST FOR COUNCILIREDEVELOPMENT AGENCY ACTION MEETING DATE: February 18, 2003 DEPARTMENT ID NUMBER: PW 03-003 Huntington Beach City Council: Motions to: 1. Accept the lowest responsivelresponsible bid submitted by Weeger Bros.,. Inc. in the amount of $9,790,500, which includes the base bid and additive/alternate items 3, 4 and 6, for South Beach Phase II, CC- 1169; 2. Authorize the Mayor and City Clerk to execute a construction contract with Weeger Bros., Inc. in substantially the same form as the attached sample construction contact; 3. Accept the bid submitted by Donna Billick in the amount of $341,340 for art element construction; 4. Authorize the Mayor and City Clerk to execute a construction contract with na Billick in substantially the same form as the attached sample construction contract; 5. Approve the redirection of Coastal Conservancy grant, and the transfer of $2,000,000 from the Blufftop Park Erosion Protection Project to the South Beach Phase II Improvements; and 6. Appropriate $84,000 from Park Acquisition and Development Fund and $290,000 from the Pier Rebuilding Fund to the project account. Redevelopment Agency: Motion to: Appropriate $235,840 from the. Redevelopment Agency unencumbered fund balance to Account No. 30581004.82200. Alternative Action(s): Direct staff to not move forward with this project at this time. Analysis: Public Works staff is assisting the Community Services Department in the rehabilitation of the beach improvements from Huntington Street to First Street. This will be the final phase of the master plan beach improvements, which include the Pier Plaza Project to the north and the South Beach Phase I Project to the south. This project completes the masterplan of the city owned beach that was approved by a twenty-seven member community task force, the Community Services Commission, and City Council that began more than a decade ago. Project highlights include the following: • Demolition and reconstruction of the Lifeguard Headquarters • Demolition and reconstruction of Jr. Guard Building/Concession • Demolition and reconstruction of three restrooms • Removal and reconstruction of bike path and showers • Construction of viewpoint and turf areas • Installation of RV hookups for electricity and water • Installation of various art elements This project was approved by the Design Review Board on February 14, 2002, and by the Planning Commission on May 28, 2002. On October 21, 2002, the City Council authorized the advertisement for bids and on December 10, 2002, bids were opened. The bids are summarized below in ascending order: G:IRCAQ0031Pw03-003 Jan 21 Broussard (Award S. Beach Ph 2).doc -2- 2I712003 11:39 AM REQUEST FOR COUNCILIREDEVELOPMENT AGENCY ACTION MEETING DATE: February 18, 2003 DEPARTMENT ID NUMBER: PW 03-003 Bidding Contractor Bid Amount 1. Weeger Bros,, Inc. $ 9,399,000.00 2. Ecology_ Construction $1.0,554,144.04 3. Dennis J. Amoroso Construction Co. $10,642,000.00 4. Emma Corporation Construction $11,600,000.00 5. Valley Crest $12,757,178.00 The lowest responsive/responsible bidder was determined to be Weeger Bros., Inc. References were reviewed with favorable results; therefore, staff recommends that Council accept the bid. In addition to the Base Bid, seven additive/alternate items were requested from the bidders. Staff recommends that the following additive/alternate items, which are conditional requirements of the project, be added to Weeger Bros., Inc. base bid: Add/Alt Item No. 3 Traffic Signal and Street Light Modifications $ 32,500 Add/Alt Item No. 4 Storm Drain Water Quality Improvements $140,000 Add/Alt Item No, 6 Flood Proofing $219,000 $391,500 Inclusion of these items would bring the total contract amount to $9,790,500. In addition, a panel of City staff, Council Members and art consultants selected borvlA Billick to design and:: construct four art elements, as required by the General Plan, throughout the project.. The construction fee for these art elements, as well as the items listed below are being included in the budget. Construction Contract: $9,790,500 Construction of Art Elements: $ 341,340 Construction Management: $ 550,000 Facility Relocation & Furnishings: $ 160,000 Contingencies: $ 980,000 Supplementals: $ 490,000 Addition of these items brings the estimated budget for this project to $12,311,840. Funding Sources: Project costs exceed the original estimated budget, therefore staff had to seek additional sources of money to complete the project. In researching supplemental funding, staff reviewed the status of a $2 million California Coastal Conservancy grant intended for a Blufftop Park erosion control project. On December 2, 2002, City staff met with the Army Corps of Engineers regarding the status of the project. Army Corps representatives indicated that the recently completed cost/benefit analysis did not warrant sufficient urgency to move forward with the project at this time. In an effort to retain this grant funding for Huntington Beach, City staff explored redirecting the erosion project funds to the South Beach Improvement project. On January 23, 2003, the California Coastal Conservancy approved DMocuments and Settingslrobinsocl ocal Settings\Temporary Internet FileslOLK7103-003 Feb 18 Broussard (Award S. Beach Ph 2)1.doc -3- 21712003 10:18 AM REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION MEETING DATE: February 18, 2003 DEPARTMENT ID NUMBER: PW 03-003 this redirection of funds. City Council approval is required to use the grant for the South Beach Phase II project. The Redevelopment Agency, through the terms of the approved Disposition and Development Agreement, funded $750,000 advanced by the Waterfront developer towards construction costs for the Beach Maintenance Facility. Two hundred thirty-five thousand eight hundred and forty dollars ($235,840) of the construction costs were inadvertently charged to the Lease Revenue Bond fund instead of the appropriate Redevelopment Agency account. Approval of the recommended Agency Action will allow the Redevelopment Agency to transfer to the Revenue Bond fund the amount used for Beach Maintenance Facility construction costs, thereby making these revenue bond funds available for completion of South Beach improvements. The project design addresses required storm water improvements that are funded with Proposition 13 monies in the amount of $175,000. There is a shortfall of $114,000, which staff proposes to fund from the Park Acquisition and Development Fund. This is an appropriate expenditure because the General Plan includes the beach as part of the park system. The City Attomey has confirmed this action in a legal opinion. (Attachment 3) The South Beach Phase 11 Irnp'rovement Project will complete the renovation of the City - owned beach for the 9 milli n annual visitors to the beach, including those from the community and outside the Ci . The project also enhances the City's opportunity to become an overnight destination attra tion by improving the beachfront with modem and attractive public facilities. Public Works Commission:1 The Public Works Commission approved this project on October 16, 2002, by a vote of 4-1-2 (Commissioners Gartland and Johnson were absent). Environmental Status: This project is Categorically Exempt pursuant to the California Environmental Quality Act, Section 15301 (C). Attachments?: 1 1 Sample Construction Contract 2 1 Fiscal Impact Statement 3 j City Attorney Opinion dated 9/19/90 RCA Author: T Broussard:jm D:Tocuments and Settingslrobinsoc\Local Settings\Temporary Internet Files14LK7103-003 Feb 18 Broussard (Award S. Beach Ph 2)1.doc -4 2/7/2003 10:18 AM ATTACHMENT #1 • • CITY FUNDED CONSTRUCTION CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND FOR THIS AGREEMENT ("Agreement") made and entered into this day of 20 by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and a California , hereinafter referred to as "CONTRACTOR." WHEREAS, CITY has solicited bids for a public works project, hereinafter referred to as 'PROJECT," more fully described as in the City of Huntington Beach; and CONTRACTOR has been selected to perform said services, NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and exchanged, the parties covenant and agree as follows. 1. STATEMENT OF WORK, ACCEPTANCE OF RISK CONTRACTOR shall complete and construct the PROJECT pursuant to this Agreement and. the Contract Documents (as hereinafter defined) and furnish, at its own cost and expense, all labor, plans, tools, equipment, supplies, transportation, utilities and all other items, services and facilities necessary to complete and construct the PROJECT in a good and workmanlike manner. CONTRACTOR agrees to fully assume the risk of all loss or damage arising out of the nature of the PROJECT, during its progress or prior to acceptance by CITY, from agreelforms/city const/rev 10-18-01 1 0 - 0 the action of the elements, from any unforeseen difficulties which may arise or be encountered in the prosecution of work, and for all other risks of any description in connection with the work, including, but not limited to, all expenses incurred by or in consequence of the suspension or discontinuance of work, except such as are herein expressly stipulated to be borne by CITY, and for well and faithfully completing the work within the stipulated time and in the manner shown and described in this Agreement, and in accordance with the requirements of CITY for the compensation set forth in the accepted bid proposal. 2. ACCEPTANCE OF CONDITIONS OF WORK; PLANS AND SPECIFICATIONS CONTRACTOR acknowledges that it is fully familiar with all the terms, conditions and obligations of this Agreement and the Contract Documents (as defined below in this Section), the location of the job site, and the conditions under which the work is to be performed, and that it enters into this Agreement based upon its thorough investigation of all such matters and is relying in no way upon any opinions or representations of CITY. It is agreed that the Contract Documents are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its subcontractors, if any, shall be bound by the Contract Documents insofar as they relate in part or in any way, directly or indirectly, to the work covered by. this Agreement. "Contract Documents" as defined herein mean and include: A. This Agreement; B. Bonds covering the work herein agreed upon; agreetformslcity constlrev 10-1 M1 2 0 -0 C. The CITY's standard Plans and Specifications and special contractual provisions, including those on file in the office of the Director of Public Works of. CITY and adopted by the City Council, and any revisions, amendments or addenda thereto; D. The current edition of Standard Specifications for Public Works Construction, published by Builders' News, Inc., 10801 National Boulevard, Los Angeles, CA 90064, and all amendments thereto, written and promulgated by the Southern California chapter of the American Public Works Association and the Southern California District Associated General Contractors of the California Joint Cooperative Committee; E. Bid documents including the Notice Inviting Bids, the . Special Instructions to Bidders and the CONTRACTOR's proposal, (which is attached hereto as Exhibit "A" and incorporated herein by this reference); F. The particular Plans, Specifications, Special Provisions and Addenda applicable to the PROJECT. Anything mentioned in the Specifications and not indicated in the Plans or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of a discrepancy between any Plans, Specifications, Special provisions, or Addenda, the matter shall be immediately submitted by CONTRACTOR to the Department of Public Works of CITY (hereinafter referred to as "DPW"), and agreefformslcity consthev 10-1"1 3 0 - 0 CONTRACTOR shall not attempt to resolve or adjust the discrepancy without the decision of DPW, save only at its own risk and expense. Should there be any conflict between the terms of this Agreement and the bid or proposal of CONTRACTOR, then this Agreement shall control and nothing herein shall be considered as an acceptance of the terms of the bid or proposal which is in conflict herewith. 3. COMPENSATION CITY agrees to pay and CONTRACTOR agrees to accept as full compensation for the faithful performance of this Agreement, subject to any additions or deductions made under the provisions of this Agreement or the Contract Documents, a sum not to exceed Dollars ($ ), as set forth in the Contract Documents, to be paid as provided in this Agreement. 4, COMMENCEMENT OF PROJECT . CONTRACTOR agrees to commence the PROJECT within ten (10.) working days after the Notice To Proceed is issued and diligently prosecute the PROJECT to completion within (____) consecutive from the day the Notice to Proceed is issued by DPW, excluding delays provided for in this Agreement. 5. TIME OF THE ESSENCE The parties hereto recognize and agree that time is of the essence in the performance of this Agreement and each and every provision of the Contract Documents. CONTRACTOR shall prepare and obtain approval as required by the Contract Documents for all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of its work in conformance with the progress schedule set forth in the Contract Documents. CONTRACTOR shall coordinate its work with the work of all agree/forms/city constlrev 10-1"1 4 0 - 0 other contractors, subcontractors, and CITY forces working on the PROJECT in a manner that will facilitate the efficient completion of the PROJECT and in accordance with the terms and provisions of this Agreement. CITY shall have complete control of the premises on which the work is to be performed and shall have the right to decide the time and order in which the various portions of the work shall be performed and the priority of the work of other contractors, subcontractors and CITY forces and, in general, all matters concerning the timely and orderly conduct of the work of CONTRACTOR on the premises. 6 CHANGES CONTRACTOR shall adhere strictly to the plans and specifications set forth in the Contract Documents unless a change therefrom is authorized in writing by DPW. CONTRACTOR agrees to make any and all changes, famish materials and perform all work necessary within the scope of the ' PROJECT as DPW may require in writing. Under no condition shall CONTRACTOR make any changes without the prior written order or acceptance of DPW, and CITY shall not pay any extra charges made by CONTRACTOR that have not been agreed upon in writing by DPW. When directed to change the work, CONTRACTOR shall submit immediately to DPW a written cost proposal reflecting the effect of the change. Should DPW not agree to such cost proposal, the work shall be performed according to the changes ordered in writing by DPW and the proper cost thereof shall be negotiated by the parties upon cost and pricing data submitted by CONTRACTOR; thereupon, CITY will promptly issue an adjusted change order to CONTRACTOR and the contract price will be adjusted upward or downward accordingly. agreMormsfcity constfrev 10-18-01 5 9 - 0 7. NOTICE TO PROCEED No work, services, material, or equipment shall be performed or furnished under this Agreement unless and until a Notice to Proceed has been given to CONTRACTOR. by CITY. CITY does not warrant that the work will be available on the date the Notice to Proceed is issued. In the event of a delay in commencement of the work due to unavailability of the job site, for any.reason, relief to CONTRACTOR shall be limited to a time extension equal to the delay due to such unavailability. S. BONDS Only bonds issued by California admitted sureties will be accepted_ CONTRACTOR shall, prior to its performance of this Agreement, furnish the following two (2) bonds approved by the City Attorney: One in the amount of one hundred percent (100%) of the contract price to guarantee the CONTRACTOR's faithful performance of the work, and one in the amount of one hundred percent of the contract price to guarantee payment of all claims for labor and materials furnished. In addition, CONTRACTOR shall submit to CITY a bond in the amount of one hundred percent (100%) of the final contract price, including all change orders, to warrant such performance for a period of one (1) year after CITY's acceptance thereof within ten (10) days of filing of the Notice of Completion. 9. WARRANTIES CONTRACTOR unconditionally guarantees all work done under this Agreement including, but not limited to, any workmanship, installation, fabrication, material or structural facilities constructed. CONTRACTOR, within ten (10) days after notice by CITY of any defect in the work, shall have the option to make appropriate repairs or replace agreefformslcity consthev 10-18-01 6 the defective item or items. Upon expiration of such ten (10) day period, CITY may then snake appropriate repair or replacement at CONTRACTOR's risk and own cost and expense. 10. INDEPENDENT CONTRACTOR It is understood and agreed that CONTRACTOR is, and shall be, acting at all times hereunder as an independent contractor and not an employee of CITY. CONTRACTOR shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONTRACTOR and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services performed hereunder. 11. LIQUIDATED DAMAGES/DELAYS It is agreed by the parties hereto that in case the total work called for hereunder is not in all parts and requirements finished or completed within the number of calendar days as set forth herein, damage will be sustained by CITY; and that it is, and would be, impractical and extremely difficult to ascertain and determine the actual damage which CITY would sustain in the event of and by reason of such delay. It is, therefore, agreed that CONTRACTOR will pay to CITY, as liquidated damages and not as a penalty, the sum of Dollars ($ ) per day for each and every working day's delay in completing the work in excess of the number of working/calendar days set forth herein, which represents a reasonable endeavor by the parties hereto to estimate a fair compensation for the foreseeable damages CITY would sustain in the event of and by reason of such delay; and CONTRACTOR agrees to pay these damages herein provided, and agreeMorms/city constirev 10-18-01 7 0 - 0 further agrees that CITY may deduct the amount thereof from any monies due or that may become due to CONTRACTOR hereunder. CONTRACTOR will be granted an extension of time and will not be assessed. damages for any portion of the delay in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of CONTRACTOR, including, but not limited to, acts of God or of the public enemy, fire, floods, epidemics, quarantine restrictions, strikes, unsuitable weather, or delays of subcontractors due to such causes. CONTRACTOR shall, within fifteen (15) days from the beginning of any such delay (unless DPW shall grant a further period of time), notify DPW in writing of the cause of the delay and CITY shall extend the time for completing the work if, in its judgment, the findings of fact thereon justify the delay; and the decision of DPW shall be conclusive on the Parties hereto. Should CONTRACTOR be delayed in the prosecution or completion of the work by the act, neglect or default of CITY, or should CONTRACTOR be delayed by waiting for materials required by this Agreement to be fim-ished by CITY, or by damage caused by fire or other casualty at the job site for which CONTRACTOR is not responsible, or by the combined action of the workers, in no way caused by or resulting from default or collusion on the part of CONTRACTOR, or in the event of a lockout by CITY, then the time herein fixed for the completion of the work shall be extended by the number of days CONTRACTOR. has thus been delayed, but no allowance or extension shall be made unless a claim therefor is presented in writing to CITY within fifteen (15) days of the commencement of such delay. No claims for additional compensation or damages for delays, irrespective of the cause thereof, and including without limitation the furnishing of materials by CITY or agree/formslcity constlrev 10-16-01 8 0 - 9 delays by other contractors or subcontractors, will be allowed and an extension of time for completion shall be the sole remedy of CONTRACTOR. 12. DIFFERING SITE CONDITIONS A. Notice: CONTRACTOR shall promptly, and before such conditions are disturbed, notify DPW in writing of: (1) Subsurface or latent physical conditions at the job site differing materially from those indicated in this Agreement or the Contract Documents; or (2) Unknown physical conditions at the job site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent to work of the character to be performed under this Agreement- DPW shall promptly investigate the conditions and if it finds that such conditions do materially so differ and cause an increase or decrease in the time required for performance of any part of the work under this Agreement, whether or not changed as a result of such conditions, an equitable adjustment shall be made and the agreement modified in writing accordingly. B. Time Extension: No claim of CONTRACTOR under this Section shall be allowed unless CONTRACTOR has given the notice required hereunder provided, however, the time prescribed therefor may be extended by CITY. agreeffom icity constlrev 10-18-01 9 0 1 9 13. VARIATIONS IN ESTIMATED QUANTITIES The quantities listed in the bid schedule will not govern final payment. Payment to CONTRACTOR will be made only for the actual quantities of contract items`used in construction of the PROJECT, in accordance with the plans and specifications. Upon completion of the PROJECT, if the actual quantities used are either more than or less than the quantities listed in the bid schedule, the bid price shall prevail subject to the provisions of this Section. DPW may, at its sole discretion, when warranted by the facts and circumstances, order an equitable adjustment, upwards or downwards, in payment to CONTRACTOR where the actual quantities used in construction of the PROJECT are in variation to the quantities listed in the bid schedule. No claim by CONTRACTOR for an equitable adjustment in price or time for completion shall be allowed if asserted after final payment under this Agreement. If the quantity variation is such as to cause an increase in the time necessary for completion, DPW shall ascertain the facts and circumstances and make such adjustment for extending the completion date as in its sole judgment the findings warrant. 14. PROGRESS PAYMENTS Each month DPW will make an estimate in writing of the work performed by CONTRACTOR and the value thereof. From each progress estimate, tea percent (10%) will be deducted and retained by CITY and the remainder of the progress estimate, less the amount of all previous payments since commencement ofthe work, will be paid to CONTRACTOR. When CONTRACTOR has, in the judgment of DPW, faithfully executed fifty percent (50%) or more of the value of the work as determined from the bid schedule, and if DPW finds that satisfactory progress has been and is being made, CONTRACTOR may be paid such sum as will bring the payments of each month up to one hundred percent (10011/0) of agree/iormsldty constlrev 10-18-01 10 0 1 0 the value of the work completed since the commencement of the PROJECT, as determined in its sole discretion by DPW, less all previous payments and less all previous retained amounts. CITY's final, payment to CONTRACTOR, if unencumbered, or any part thereof, unencumbered, shall be made thirty-five (35) days after the acceptance of the work and the filing of a Notice of Completion by CITY. Payments shall be made on demands drawn in the manner required by law, each payment to be accompanied by a certificate signed by DPW, affirming that the work for which payment is demanded has been performed in accordance with the terms of the Agreement and that the amount stated in the certificate is due under the terms of the Agreement. Partial payments on the contract price shall not be considered as a acceptance of any part of the work. 15. WITHBELD CONTRACT FUNDS, SUBSTITUTION OF SECURITIES At the request and at the sole cost and expense of CONTRACTOR, -who shall retain beneficial ownership and receive interest, if any thereon, CITY shall permit the substitution and deposit therewith of securities equivalent to the amount of any monies withheld by CITY to ensure performance under the terms of this Agreement. 16. AFFIDAVITS OF SATISFACTION OF CLAIMS After the completion of the work contemplated by this Agreement, CONTRACTOR shall file with DPW its affidavit stating that all workers and persons employed, all firms supplying materials and :all subcontractors working upon the PROJECT have been paid in full and that there are no claims outstanding against the PROTECT for either labor or material, except certain items, if any, to be set forth in CONTRACTOR'S affidavit covering disputed claims, or items in connection with Notices to Withhold, which have been filed under the provisions of the statutes of the State of California. agreehorms/city constlrev 10-18-01 11 17. WAIVER OF CLAIMS The acceptance by CONTRACTOR of the payment of the final certificate shall constitute a waiver of all claims against CITY under or arising out of this Agreement.- 18. INDEMNIFICATION, DEFENSE, HOLD HARMLESS CONTRACTOR hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all, claims, damages, losses, expenses, judgments, demands defense costs, and consequential damage or liability of any kind or nature, however caused, including those resulting from death or injury to CONTRACTOR's employees and damage to CONTRACTOR's property, arising directly or indirectly out of the obligations or operations herein undertaken by CONTRACTOR, caused in whole or in part by any negligent act or omission of the CONTRACTOR, any subcontractors, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY. CONTRACTOR will conduct all defense at its sole cost and expense and CITY shall approve selection of CONTRACTOR's counsel. CITY shall be reimbursed for all costs and attorney's fees incurred by CITY in enforcing this obligation. 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 CONTRACTOR. agreedarms/city conzVrev 10-18-01 12 • • 19. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE Pursuant to California Labor Code Section 1861, CONTRACTOR acknowledges awareness of Section 3700 et seq. of this Code, which requires every employer to be insured against liability for workers.' compensation; CONTRACTOR covenants that it will comply with such provisions prior to commencing performance of the work hereunder. CONTRACTOR shall obtain and furnish to City workers' compensation and employer's liability insurance in an amount of not less than the State statutory limits. CONTRACTOR shall require all subcontractors to provide such workers' compensation and employer's liability insurance for all of the subcontractors' employees. CONTRACTOR shall furnish to CITY a certificate of waiver of subrogation under the terms of the workers' compensation and employer's liability insurance and CONTRACTOR shall similarly require all subcontractors to waive subrogation. 20. INSURANCE In addition to the workers' compensation and employer's liability insurance and CONTRACTOR's covenant to defend, hold harmless and indemnify CITY, CONTRACTOR shall obtain and furnish to CITY, a policy of general public liability insurance, including motor vehicle coverage covering the PROJECT. This policy shall indemnify CONTRACTOR, its officers, employees and agents while acting within the scope of their duties, against any and all claims arising out or in connection with the PROJECT, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including producWcompleted operations liability and blanket contractual liability, of One Million Dollars (S 1,000,000) per occurrence. If coverage is agreeiform idly consVrev 10-1 B-01 13 0 - 0 provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars (S1,000,000) for this PROJECT. This policy shall name CITY, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the PROJECT shall be deemed excess coverage and that CONTRACTOR's insurance shall be primary. Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. 21. CERTIFICATES OF INSURANCE: ADDITIONAL INSURED ENDORSEMENTS Prior to commencing performance of the work hereunder, CONTRACTOR shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; the certificates shall: 1. provide the name and policy number of each carrier and policy; 2. state that the policy is currently in force; and 3. promise to provide that such policies will not be canceled or modified without thirty (30) days' prior written notice of CITY. CONTRACTOR shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverages shall not derogate from the CONTRACTOR's defense, hold harmless and indemnification obligations as set forth under this Agreement. CITY or its representative shall at all times have the right agree!#onsldty consUrev 10-18-01 14 to demand the original or a copy of all the policies of insurance. CONTRACTOR shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. CONTRACTOR shall provide a separate copy of the additional insured endorsement to each of CONTRACTOR's insurance policies, naming CITY, its officers, elected and appointed officials, employees, agents and volunteers as Additional Insureds, to the City Attorney for approval prior to any payment hereunder. 22. DEFAULT AND TERMINATION If CONTRACTOR fails or refuses to prosecute the work hereunder with diligence, or fails to complete the work within the time specified, or is adjudged bankrupt or makes an assignment for the benefit of creditors or becomes insolvent, or violates any provision of this Agreement or the Contract Documents, CITY may give CONTRACTOR notice in writing of its intention to terminate this Agreement. Unless the violation is cured within ten (10) days after such Notice of Intention has been served on CONTRACTOR, CITY may, without prejudice to any other remedy it may have, terminate this Agreement upon the expiration of that time. Upon such default by CONTRACTOR, CITY may elect not to terminate this Agreement; in such event CITY may make good the deficiency in which the default consists and deduct the resulting costs from the progress payments then or to become due to CONTRACTOR. If it is subsequently detemlined by a court of competent jurisdiction that CITY's termination of this Agreement under this Sectioa was wrongful, such termination shall be converted to a termination for convenience under Section 23 and any damages shall be assessed as set forth in Section 23. agree![orrm/city const/rev 10-18-01 15 • • 23. TERMINATION FOR CONVENIENCE CITY may terminate this Agreement for convenience at any time with or without cause, and whether or not PROJECT.is fully complete upon seven (7) calendar days written notice to CONTRACTOR. In the event of termination, under this Section CITY shall pay CONTRACTOR for value of work in place on the PROJECT through the termination period plus seven and one-half percent (7 %2 %) for overhead and profit less all such payments already made. Such payment by CITY shall be CONTRACTOR's sole and exclusive remedy for termination by CITY for its convenience and CITY shall have not further obligation to CONTRACTOR. 24. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONTRACTOR agrees that upon completion of the work to be performed hereunder, or upon expiration or earlier termination of this Agreement, all original plans,' specifications, drawings, reports, calculations, maps and other documents pertaining to this Agreement shall be delivered to CITY and become its sole property at no further cost. 25. NONASSIGNABILITY CONTRACTOR shall not sell, assign, transfer, convey or encumber this Agreement, or any part hereof, or any right or duty created herein, without the prior written consent of CITY and the surety. 26. CITY EMPLOYEES AND OFFICIALS CONTRACTOR shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the California Government Code. agraefrormsldty constlrev 10-1B-01 16 0 - 0 27. STOP NOTICES; RECOVERY OF ADMINISTRATIVE COSTS CITY shall be entitled to all reasonable administrative costs and necessary disbursements arising out of the processing of Stop Notices, Notices to Withhold, or any similar legal document. This obligation shall be provided for in the labor and materials payment bond required of CONTRACTOR. CITY may charge an administrative fee of One Hundred Dollars ($100) for every Stop Notice filed in excess of two (2), regardless of whether or not CITY is named in an action to enforce such stop notices. CITY may set off any unreimbursed cost or expense so incurred against any sum or sums owed by CITY to CONTRACTOR under this Agreement. 28. NOTICES Any notices, certificates, or other communications hereunder shall be given either . by personal delivery to CONTRACTOR's agent (as designated in Section I hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below; provided that CITY and CONTRACTOR may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, reputable overnight carrier or U. S. certified mail -return receipt requested: TO CITY: ' ' TO CONTRACTOR: City of Huntington Beach ATTN: 2000 Main Street Huntington Beach, CA 92648 agreelformslcity constlrev 10-18-01 17 0 - 0 29. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of maters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 30. IMMIGRATION CONTRACTOR shall be responsible for frill compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions. of United States Code Section 1324a regarding employrnenf verification. . 31. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONTRACTOR and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONTRACTOR understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONTRACTOR. 32. ATTORNEY'S FEES Except as expressly set forth in Section 18, in the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorneys fees, agreelfowWcity constlrev 10-1"1 18 0 - 0 such that the prevailing party shall not be entitled to recover its attorney's fees from the non - prevailing party. 33.. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 34. GOVERNING LAW This Agreement shall be governed and construed in accordance with. the laws of the State of California. 35, DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, agreefforms/city consVrev 10-18-01 19 0 - 0 irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 36. CONSENT Where CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be consent/approval to any subsequent occurrence of the same or any other transaction or event. 37. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement shall so survive. 38. MODIFICATION No waiver or modification of any Ianguage in this Agreement shall be valid unless in writing and duly executed by both parties: 39. ENTIRETY The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiation, and that each has bad the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, . promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that parry's behalf, which are not embodied in this Agreement, and that that party has riot executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. This Agreement, and the attached Exhibit "A", contain the entire agreement between the parties respecting the subject matter agreeltorms/city const/rev 10-18-01 20 of this Agreement, and supercede all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. CONTRACTOR CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California punt name ITS: (circle one) Chairmamftesident/Vice President AND By: print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer REVIEWED AND APPROVED: City Administrator agree/formsldty const/rev 10-1"1 21 Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney INITIATED AND APPROVED: Director of Public Works Cw • CITY FUNDED CONSTRUCTION CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND FOR TABLE OF CONTENTS Page No. 1. STATE OF WORK; ACCEPTANCE OF RISK 1 2. ACCEPTANCE OF CONDITIONS OF WORK; PLANS 2 3. COMPENSATION 4 4. COMMENCEMENT OF PROJECT 4 5. TIME OF THE ESSENCE 4 6. CHANGES 5 7. NOTICE TO PROCEED 6 8. BONDS 6 9. WARRANTIES 6 10. INDEPENDENT CONTRACTOR 7 11. LIQUIDATED DAMAGES/DELAYS 7 12, DIFFERING SITE CONDITIONS 9 13. VARIATIONS IN ESTIMATED QUANTITIES 10 14. PROGRESS PAYMENTS 10 15, WITHHELD CONTRACT FUNDS, SUBSTITUTION OF SECURITIES 11 16. AFFIDAVITS OF SATISFACTION OF CLAIMS I I IT WAIVER OF CLAIMS 12 18, INDEMNIFICATION, DEFENSE, HOLD HARMLESS 12 19. WORKERS' COMPENSATION INSURANCE 13 20. INSURANCE 13 21. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED 14 22. DEFAULT & TERMINATION 15 23_ TERMINATION FOR CONVENIENCE 16 24. DISPOSITION OF PLANS, ESTIMATES AND OTHER 16 25. NON -ASSIGNABILITY 16 26. CITY EMPLOYEES AND OFFICIALS 16 27. STOP NOTICES 17 28, NOTICES 17 29. SECTION HEADINGS 18 30. IlVMGRATION 18 31. LEGAL SERVICES SUBCONTRACTING PROHIBITED 18 32, ATTORNEY'S FEES . 18 33. INTERPRETATION OF THIS AGREENMNT 19 34_ GOVERNING LAW 19 35. DUPLICATE ORIGINAL 19 36. CONSENT 20 37. SURVIVAL 20 38. Modification 20 39 ENTIRETY 20 jmplcontracts group/city consul/30/02 0 - 0 ATTACHMENT #2 0 - 0 CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICA TION To: Ray Silver, City Administrator From: Clay Martin, Director Of Administrative Services Subject: FIS 2003-19 Award South Beach Phase II Improvement Project, CC-1169 Date: February 5, 2003 As required by Resolution 4832, this Fiscal Impact Statement has been prepared for "FIS 2003-19 Award South Beach Phase II Improvement Project, CC-1169". If the City Council approves this request (total appropriation $12,312,000) it will reduce the unreserved, undesignated fund balance of the Park Acquisition and Development Fund to $453,000 and it will reduce the unreserved, undesignated fund balance of the Pier Rebuilding Fund to zero. All other amounts are covered by existing appropriations. Clay Mayt(n Direct& of Administrative Services • ATTACHMENT #3 USE OF PARK FTES FOR BEACH IMPROVE"ENTS - See t 5. lid CITY OF HUNTINGTON BEACH USE INTER-DEPARTMENT COMMUNICATION To Jim B. Engle. From Gail Hutton Acting Director, Community Services City Attorney Subject Quimby Act Questions Date September 19, 1990 This responds to your set of questions regarding the Quimby -Act: 1. Must the land or money f rom a subdivision be used within the boundaries of the subdivision? Answer: No. It is sufficient that the use of the land or money be reasonably related to serving the subdivision and they can be "off site improvements" or improvements outside the subdivision. Section 66477, paragraph (c) of the California Government Code provides that "(T)he land, fees, or combination thereof are to be used only for the purpose of developing or rehabilitating existing park or recreational facilities to serve the subdivision." (Emphasis .added) What would "serve." the subdivision was interpreted in Associated Home Builders of the Greater East Bay, Inc. v. City of Walnut Creek (4 Cal. 3d 633, 94 Cal. Rptr. 630, 484 P. 2d 606) to include any "incidental benefit" to the city as a whole. As example, that court held that "(R)ecreation facilities, like sewers, streets, and drainage facilities, were reasonably related to the health and safety of the subdivision's residents." 2. Can these park and recreation facilities be regional, such as HCP or the Bolsa Chica Linear Park? Answer: Yes. Park can be city, county or state owned as long as it reasonably serves the community. A survey shows that in a regional park located within the city, 71% of the users are Huntington Beach residents. Furthermore, HCP is adjacent to Holly/Seacliff so it will directly serve the residents of Huntington Beach. The Orange County Linear Park is also immediately adjacent to Holly/Seacliff. 3.- Can the city take Quimby dedication of land within Holly/Seacliff, use part of it for neighborhood parks within that quartersection, and sell the land and use the money to develop other parks, such as HCP? Answer: Probably Not. Dedicated land in the Holly-Seacliff Dispositon and Development • • Agreement (DDA) is projected to be site specific. The conveyance from the Chevron Corporation to the City will undoubtedly limit the use of acreage for park purposes only. Further the common- law concept of dedication contemplates an easement for the public use which is vested in the public, in the sense that the state, or an appropriate subdivision thereof, holds title to. the dedicated right in trust for all. the people having proper occasion to exercise or enjoy it. (Hoadley v San Francisco, 50 C 265.) 4. May in lieu fees for park dedication be used for children's tot lots, recreation centers, swimming pools, picnic shelters, etc? Answer: Yes. The Quimby Act specifically provides in paragraph (c) thereof that in lieu fees are to be used only for the purpose of developing new or rehabilitating existing park or recreational facilities to serve the subdivision. Since the above are considered recreational facilities, as long as they benefit the residents of the subdivision in general, the use of the fees would be proper. 5. May in lieu fees be used for construction of the pier and other beach related improvements? Answer: Yes. This would fall under the authorized development of new or rehabilitating existing recreational facilities as discussed in No-4 above. Since the pier and other beach related improvements are to be used by the public, the use would not violate the Quimby Act. Case laws hold that the fees need not be used only by residents that made the contribution, (Wright Development v. City of Mountain View (1975) 125 Cal. Rptr. 723, 53 C.A. 3d 274.) While most dedications are for specific public uses, the essence of dedication is that the use shall be for the benefit of the public at large. (Los Angeles v. Kysor, 125 C 463, 58 P 90.) i� Gail Hutton City Attorney • • RCA ROUTING SHEET INITIATING DEPARTMENT: Public Works/Community Services/Economic Development SUBJECT: Award South Beach Phase II. COUNCIL MEETING DATE: February 18, 2003 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution wlexhibits & legislative draft if applicable Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (wlexhibits if applicable) (Signed in full by the City Attome Not Applicable Subleases, Third Party Agreements, etc. Approved as to form by City Attome Not Applicable Certificates of Insurance (Approved by the City Attome) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Attached Bonds (If applicable) Not Applicable Staff Report If applicable Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff Assistant City Administrator Initial City Administrator Initial P City Clerk' EXPLANATION FOR RETURN OF ITEM: