HomeMy WebLinkAboutFIREFLY STUDIOS LLC - 2001-04-02CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
CONNIE BROCKWAY
CITY CLERK
LETTER OF TRANSMITTAL OF ITEM APPROVED BY THE CITY COUNCIL/
REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH
DATE: . April 5, 2001
TO: Firefly Studios, LLC
Name
7 Avenida Vista Grande, #314
Street
Santa Fe, NM.87505-9199
City, State, Zip
ATTENTION: Howard & Kathleen Meehan
DEPARTMENT:
REGARDING: Prof . Serv. Contract
for Commission of Artwork
See Attached Action Agenda Item E-13 Date of Approval 4-2-01
Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item.
Remarks:
dm� aafe�y-
Connie Brockway
City Clerk
Attachments: Action Agenda Page
X Agreement X
Bonds
Insurance x
RCA
Deed
Other
CC: R. Hagan
Com. Serv. X
X
X
Name
Department RCA
Agreement
Insurance Other
R. Beardsley
DPW X
X
X
Name
Department RCA
Agreement
Insurance Other
Name
Department 'RCA
Name Department RCA
C. Mendoza X X
Risk Management Dept.
Agreement Insurance Other
Agreement Insurance Other
X
Insurance
(Telephone:714-536.5227)
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Council/Agency Meeting Held: 0)
Deferred/Continued to:
;d ❑ Conditionlily Approved ❑ Den
Meeting Date: APRIL 2, 2001
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WP- City1ClerKfs,5ignature
Department ID Number: PW-01-22
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND C
SUBMITTED BY:
PREPARED BY:
RAY SILVER, City Admini
RON HAGAN, Director, Communif�,ZVM
ROBERT F. BEARDSLEY, Director, Publi
SUBJECT: AUTHORIZE THE AWARD OF CONTRACT FOR THE
CONSTRUCTION OF SOUTH BEACH PHASE ONE; CC-1106
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachments)
Statement of Issue: The South Beach Phase One project, CC-1106, is ready for bid award.
Funding Source: A combination of the American Trader Oil Spill Recovery Funds, City of
Huntington_ Beach Certificates of Participation (COPs), and a Federal (TEA) Grant. The
money has been allocated to South Beach PhaseI Improvements, Acct.#30187003.82200.
The following breakdown identifies the allocation of funding:
Expenses: Engineering Construction Cost Estimate $5,440,000
Contingency/Supplemental Costs $1,360,000
Total Estimated Cost $6,800,000
Funding: American Trader Oil Spill Recovery Funds $3,800,000
City of Huntington Beach COPs $2,500,000
Federal TEA Grant $ 500,000
Total Project Funding $6,800,000
Recommended Action: Motions to:
1. Uphold the bid protests of both Valley Crest and Southwest Engineering as to Ecology
Construction's bid for the construction of the South Beach Phase One project;
2. Reject the low bid submitted by Ecology Construction Inc., and determine that the bid is
non -responsive;
3. Reject Southwest Engineering's bid protest as to Valley Crest's bid;
4. Accept the second lowest bid submitted by Valley Crest, and waive, as minor irregularities,
Valley Crest's failure to sign pages C-6 and C8 of the Bidder's Proposal;
RCA Award SB-Ph1
i
-- 3/23/01 1:23 PM
AUEST FOR COUNCIL ACTIR
MEETING DATE: APRIL 2, 2001
DEPARTMENT ID NUMBER: PW-01-22
5. Approve and authorize the Mayor and the City Clerk to execute the construction contract
between the city and Valley Crest in the amount of $5,099,580 for the construction of
South Beach Phase One;
6. Approve and authorize the Mayor and City Clerk to execute the Professional Services
Contract between the city and Firefly Studios, LLC, for Commission of Artwork; and
7. Authorize the Director of Public Works to expend a total of $6,800,000 from
Acct.#30187003.82200, which includes the contract cost of $5,099,580, estimated
contingency of $765,000 (15%), construction management fees of $447,623, art element
construction costs of $254,500, construction administrative services of $64,900, and
$168,397 in undesignated supplemental expenditures.
Alternative Action(s):
1. Deny award of the contract to Valley Crest and select another responsive/responsible
bidder, or
2. Reject all five bids and direct staff as to how to proceed.
Analysis: Most of the existing South Beach improvements were constructed over 35
years ago and are now in need of rehabilitation or reconstruction. South Beach Phase I is a
construction project designed to revitalize the outdated and sometimes dilapidated beach
facilities between Huntington Street and Beach Boulevard on the ocean side of Pacific Coast
Highway. This project will bring this section of the city beach into compliance with building
codes and the Americans with Disabilities Act. It will also improve beach.access and visitor -
serving facilities. The contract allows for 210 working days (approximately eleven months).
The goal is to have the project completed before summer 2002.
The project highlights include the demolition and reconstruction of two restroom buildings
and one concession building, the construction of new, decorative hardscape around each of
the concession/restroom plazas, a decorative walkway crossing the parking lot, new parking
lot and bike path lighting, beach showers, rehabilitation of the parking lot paving, and the
removal and reconstruction of a wider, safer Ocean Strand, the multi -purpose beach trail.
The project will also include three art elements. An art element will be integrated into each of
the two southerly concession/restroom plazas. The third element will be featured at the
intersection of Beach Boulevard and Pacific Coast Highway.
On June 19, 2000, City Council authorized the Director of Public Works to solicit bids for the
construction of South Beach Phase One, CC-1106. On January 4, 2001, bids were received
and publicly opened by the City Clerk.
The construction cost estimate for the project was $5,563,000. Five bids were received and
are summarized below by order of least dollar amount:
1. Ecology Construction, Inc. $5,068,075
2. Valley Crest $5,099,580
3. Southwest Engineering, Inc. $5,358,000
4. Amelco Industries $5,701,308
5. Los Angeles Engineering $6,198,496
RCA Award SB-Ph1 -2- 3/23/01 1:24 PM
INQUEST FOR COUNCIL ACT*
MEETING DATE: APRIL 2, 2001
DEPARTMENT ID NUMBER: PW-01-22
Upon examination of Ecology Construction's bid, it was found that the summation of the
items of work did not equal the total lump sum bid indicated by the bidder. The error caused
the bid to be unresponsive and, therefore, the bid was disqualified. The unresponsiveness of
Ecology Construction's bid was determined by the City Attorney's Office (Attachment 2).
The validity of the bid by Valley Crest, the apparent second lowest bidder, was questioned by
Southwest Engineering in a letter to the City Council dated March 13, 2001. The City
Attorney's Office has evaluated Southwest Engineering's letter and Valley Crest's bid and
determined that the city can waive the issues cited by Southwest Engineering as minor
irregularities. Southwest Engineering has been informed of the City Attorney's analysis and
the recommended action in this Request for Council Action. Southwest has indicated that it
will not pursue the matter further.
The Robert Mayer Corporation (TRMC) proposes to construct a pedestrian bridge from the
Hilton Hotel complex over Pacific Coast Highway to South Beach and rebuild the Beach
Cabana concession building. Various improvements included in the city's South Beach
Phase One project are designed to coordinate with and enhance the pedestrian bridge and
beach concession. The construction of the pedestrian bridge and concession building will
requ;re staging area within the city's South Beach Phase One project over a period yet to be
det(irmined. Once the South Beach Phase One project is awarded, the city will have to
negotiate the accommodation of staging and schedule with the city's contractor. Funding for
this anticipated expense will come from the undesignated supplemental expenditures.
Community Services and Public Works Commissions Review: The Community Services
and Public Works Commissions have approved the plans for South Beach Phase One.
Environmental Status: The Planning Department has reviewed this project and determined
it to be categorically exempt pursuant to Section 15301, Class 1 of the California Environ-
mental Quality Act.
Attachment(s):
1 Location Map
2 City Attorney's Review of Bidders
3 Professional Services Contract w/Firefly Studios
RCA Author: MPU
RCA Award SB-Ph1 -3- 03/22/01 3:22 PM
PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH AND FIREFLY STUDIOS, LLC
FOR COMMISSION OF ARTWORK
THIS Agreement is made and entered into this end day of Apri1
by and between the City of Huntington Beach, a municipal corporation of the State of
California, hereinafter referred to as "CITY," and FIREFLY STUDIOS, LLC, a New Mexico
limited liability company, hereinafter referred to as "CONSULTANT."
WHEREAS, CITY is implementing a -Public Art Project within the South Beach -Phase I
Redevelopment area on the coast side of Pacific Coast Highway in accordance with the terms
and conditions of this Agreement; and
CITY desires to engage the services of a consultant to provide professional public artist
services for the construction and installation of two art plazas and one entry sculpture within
South Beach - Phase 1, in the City of Huntington Beach, hereinafter referred to as PROJECT;
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 said services,
NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows:
1. SCOPE OF SERVICES
CONSULTANT has been selected, construct and install two shell designed plazas and
one entry sculpture at the PROJECT site.
CONSULTANT shall:
A. Prepare specifications and cost estimates according to directions and standards of
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the CITY. CONSULTANT shall commence fabrication of the PROJECT only
upon receipt of approval in writing of the design, construction documents, and
cost estimates by the CITY or authorized representative.
B. Complete the PROJECT within thirty (30) working days of notice to proceed
from CITY or its authorized representative.
C. Prepare an installation plan detailing construction and installation of the
PROJECT in accordance with schedule to be determined by CITY and its general
contractor. The installation plan shall include a description of any activities
requiring coordination with the CITY.
D. Install the PROJECT so as to conform to the requirements of all local and State of
California laws, ordinances, codes, regulations and requirements.
E. Assist in filing any document required to secure approval of all governmental
authorities having jurisdiction.
F. Shall conform with the special provisions and measures for the construction and
installation of the PROJECT, through the duration of the construction phase of the
project, as outlined in the construction drawings prepared by CONSULTANT.
G. Shall work directly with the CITY of Huntington Beach Community Services
Department or his designee to make all recommendations relating to the execution
and progress of the PROJECT in writing and provide access to the PROJECT
during reasonable business hours to review the work and progress in completing
the PROJECT.
H. Be available to attend special meetings and construction site visits regarding the
PROJECT as authorized by the CITY or its designee from the signing of this
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contract until the completion of the project, providing it is within the terms of this
contract. The CONSULTANT understands that the project schedule is subject to
change due to adjustments by the CITY.
I. Coordinate all_ invoicing, scheduling, time -line alterations, subcontractor changes
and/or progress reports and/or comments on progress of artwork to CITY's
Director of Community Services or his designee for consideration/action.
J. - Provide project administration -in the hiring and management of subconsultants,
and installation oversight in the selection and purchasing of materials used.
K. Coordinate and consult with the General Contractor regarding the installation of
any special features such as utilities, walls, paving, guardrails, lighting, and
planting and irrigation details affecting the aesthetic intentions of the PROJECT,
upon arrangement and notification by the CITY designee.
L. Provide construction observation and management services to subconsultants-on
the project, reviewing and monitoring their construction and installation progress,
schedules, payment and insurance requirements as stated in CONSULTANT's
signed Agreement.
M. Provide construction observation services to the General Contractor during rough
and finish grading phase of the South Beach Redevelopment Project.
N. Provide construction observation services to -the General Contractor during
staking and layout phase of the South Beach Redevelopment Project.
2. - DESIGNATED CONTACTS
CONSULTANT hereby designates Ann Thorne, who shall represent it and be its
sole contact and agent in all consultations with CITY during the performance of this Agreement.
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3. RESPONSIBILITIES OF CITY
The CITY shall provide the CONSULTANT, at no cost to the CONSULTANT, the
following information or services for this Project:
A. One:copy of the data.pertinent to CONSULTANT's performance of PROJECT.
B.. All available data and information relative to.policies, standards, criteria, studies,
etc.
C. Notification of meeting dates and other construction schedules relating to the
PROJECT at least two weeks prior to such events.
D. Examination of materials and information submitted by the CONSULTANT and
decisions pertaining theretofore promptly to avoid unreasonable delay in the
progress of the PROJECT. The CITY shall keep the CONSULTANT_ advised,.
concerning the progress of the South Beach Redevelopment Project.
4. 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 and all tasks specified in
Section I shall be completed according to the schedule established by CITY and
CONSULTANT. This schedule may be amended to benefit the PROJECT if mutually agreed by
CITY and CONSULTANT.
5. COMPENSATION
In consideration of the performance of the services described herein, CITY agrees to pay
CONSULTANT a fee not to exceed Two Hundred Sixty Eight Dollars ($268,000.00).
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6. EXTRA WORK
In the event CITY requires additional services not included in Section 1, or changes in
the scope of services described in Section 1, 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. CONSULTANT shall
charge no more than One Hundred Dollars ($100.00) per hour plus materials and additional
expenses for said extra work.
7. METHOD OF PAYMENT
A. CONSULTANT shall be entitled to progress payments toward the fixed fee set
forth herein in accordance with the progress and payment schedules set forth in
below:
Twenty percent ($53,600.00) mobilization costs submitted to the City and
related to purchase of construction material, to be paid upon signing of
contract and written authority.
2. Forty percent ($107,200.00) upon receipt of a written progress report
detailing work to date at 50%.
3. Thirty percent ($80,400.00) upon completion of 75% of construction,
upon receipt of a written progress report detailing work to date.
4. Ten percent ($26,800.00) upon completion of installation, City
acceptance, and submission of documentation and information.
B. Delivery of work product: A copy of every memorandum, letter, report,
calculation and other documentation prepared by CONSULTANT shall be
available to CITY upon request to demonstrate progress toward completion of
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tasks. In the event CITY rejects or has comments on any such product, CITY
shall identify specific requirements for satisfactory completion. Any such product
which has not been formally accepted or rejected by CITY shall be deemed
accepted.
C. CONSULTANT shall submit to CITY an invoice for each progress payment due.
Such invoice shall:
1. Reference this Agreement;
2. Describe the services performed;
3. Show the total amount of the payment due;
4. Include a certification by a principal member of CONSULTANT's firm
that the work has been performed in accordance with the provisions.of this
Agreement; and
5. For all payments include an estimate of the percentage of work completed.
Upon submission of any such invoice, if CITY is satisfied that
CONSULTANT is making satisfactory progress toward completion of
tasks in accordance with this Agreement, CITY shall promptly approve
the invoice, in which event payment shall be made within forty-five (45)
days of receipt of the invoice by CITY. Such approval shall not be
unreasonably withheld. If CITY does not approve an invoice, CITY shall
notify CONSULTANT in writing of the reasons for non -approval within
seven (7) calendar days of receipt of the invoice, and the schedule of
performance set forth in Section 1 shall be suspended until the parties
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agree that past performance by CONSULTANT is in, or has been brought
into compliance, or until this Agreement is terminated as provided herein.
D. Any billings for extra work or additional services authorized by CITY shall be
invoiced separately to CITY. Such invoice shall contain all of the information
required above, and in addition shall list the hours expended and hourly rate
charged for such time. Such invoices shall be approved by CITY and its
designee, .if the work performed is in accordance with the extra work or additional
services requested, and if CITY is satisfied that the statement of hours worked and
costs incurred is accurate. Such approval shall not be unreasonably withheld.
Any dispute between the parties concerning payment of such an invoice shall be
treated as separate and apart from the ongoing performance of the remainder of
this Agreement.
E. CONSULTANT shall maintain_ records of expenses and accounts pertaining to
this PROJECT on a generally recognized accounting basis and shall be available
to the CITY or its authorized designee upon request.
F. CONSULTANT shall be responsible for all mailing or shipping charges or the
submission of any reports, schedules or materials pursuant to this agreement, the
costs of transporting the work or materials to the site and the costs of all
subcontractors necessary for the proper performance of the services required
under this Agreement.
8. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS
CONSULTANT agrees that all materials prepared hereunder, including all original plans,
studies, drawings, designs, sketches, computer printouts, specifications, models and maquettes
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C,
and reports shall be turned over to CITY upon termination of this Agreement or upon PROJECT
completion, whichever shall occur first. In the event this Agreement is terminated, said materials
may be used by CITY in the completion of the PROJECT or as it otherwise sees fit. Title to said
materials shall pass to CITY upon payment of -fees determined to be earned by CONSULTANT
to. the point of termination or completion of the PROJECT, whichever is applicable.
CONSULTANT shall be entitled to retain copies of all data prepared hereunder.
9. RISK OF LOSS
All risk of destruction, or damage to, the PROJECT or any part thereof from any cause
whatsoever shall be borne by the CONSULTANT until installation and written acceptance by the
CITY which shall be within three days of completion and walk-through regardless of schedule of
other phases in progress by city's general contractor, which is beyond the control of
CONSULTANTS. The CONSULTANT, at his/her expense shall repair, repair, restore and, make
good all such damage to any portion of the Work prior to CITY's acceptance only
10. OWNERSHIP OF DOCUMENTS AND PROJECT
A. Ownership of Documents At such time the CONSULTANT has been
compensated for services performed, all original plans, studies, sketches,
drawings, computer printouts, specifications, models, and maquettes as herein
required shall be the property of the CITY, including all incidental rights thereto,
whether the work for which they were made has been executed or not. In the
event that this Agreement is terminated for any reason, all documents, plans,
specifications, and drawings of the. facilities, .whether complete or not, shall
become the property of the CITY upon payment of any compensation to which
the CONSULTANT is entitled. The CONSULTANT shall have the right,
00agree/meehan/11/29/00
however, to make copies of all said documents, plans, studies, sketches, drawings,
computer printouts and specifications. The CITY will indemnify the
CONSULTANT for liability incurred if drawings are used for other than their
intended purpose.
The CONSULTANT -shall.store:and protect.anymodels, maquettes,. and full size
visual materials created in support of the PROJECT through.the duration of the
Agreement. The Project Art Manager, will notify CONSULTANT to,determine
access.
B. Finished ARTWORK shall become the property of the CITY once the CITY
accepts it.
C. Any Artwork is the original product of his own creative efforts; and unless
otherwise stated in this Agreement, the Artwork is an edition of one; and the.
.CONSULTANT shall•not sell`or duplicate in any -scale -the ARTWORK or. any
portion thereof or allow others to do so without prior written consent of the CITY.
This Paragraph is not intended to prevent CONSULTANT or CITY from taking
or disseminating photographs of the Artwork.
11. PRODUCTIONS
CONSULTANT hereby authorizes the CITY, without charge to the CITY, an
irrevocable, royalty -free, nonexclusive license.to make; or cause to be made, photographs and
other. two-dimensional reproductions of the Artwork for education, public relations, tourism, arts
promotional purposes. without payment. of a royalty to the -CONSULTANT. For purposes of this
Agreement, the following are among those deemed to be permissible reproductions for the above
cited purposes: (1) brochures and pamphlets pertaining to the CITY; (2) reproduction in
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exhibition catalogues, books, slides, photographs, postcards, posters, and calendars; (3) in art
magazines, art books and art news sections of newspapers; (4) in general books and magazines
not primarily devoted to art; slides and film strips; and (5) television. On any and all such
reproductions, the CITY shall place a copyright notice in the form and manner required to
protect the copyright of the Artwork under the United States Copyright Law and credit the artist.
The CITY agrees that, unless the CONSULTANT requests to the contrary in writing, all formal
references to, and reproductions of, the Artwork shall include the following credit line: an
original work owned and commissioned by the City of Huntington Beach, Community Services
Department" in any public showing under the CONSULTANT'S control or reproductions of the
work. The CITY agrees that reproductions of the Artwork shall be made to maintain the
integrity and clarity of the CONSULTANT'S ideas and statements as represented by the
Artwork.
Any ARTWORK:is theoriginal-product of his own creative efforts; and unless. otherwise
stated in this Agreement, the ARTWORK is an edition of one; and the CONSULTANT shall not
sell or duplicate in any scale the ARTWORK or any portion thereof or allow others to do so
without prior written consent of the CITY. This Paragraph is not intended to prevent
CONSULTANT or CITY from taking or disseminating photographs of the ARTWORK.
12. DISPUTES
In the event that CONSULTANT considers any work demanded of him to be outside the
requirements of the contract, or if he considers any order, instruction, or decision of the CITY to
be unfair, he shall immediately upon receipt of such order,. instruction or decision, ask for a
written confirmation of the same whereupon he shall proceed without delay to perform the work
or to conform to the order, instruction, or decision; but unless the CONSULTANT finds such
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order, instruction or decision satisfactory, he shall within 20 days after receipt of same, file a
written protest with the CITY stating clearly and in detail his objections and reasons therefor.
Except for such protests or objections as are made of record in the manner specified and within
the time stated herein, and except for such instances where the basis of a protest could not
reasonably have been foreseen by the CONSULTANT within the time limit specified for protest,
the CONSULTANT hereby waives all grounds for protests or objections to the orders,
instructions, or decisions of the CITY and hereby agrees that, as to all matters not included in
such protests, the orders, instructions, or decisions of the CITY will be limited to matters
properly falling within the CITY'S authority.
13. REMOVAL OR ALTERATION OF ARTWORK
A. The CITY shall not intentionally remove or alter the completed PROJECT of the
CONSULTANT unless:
CITY notifies the CONSULTANT in writing of the proposed removal or
alteration
2 CITY obtains CONSULTANT'S prior written approval to the proposed
damage, alteration, modification, change, or removal.
B. If the CONSULTANT does not provide written approval within thirty (30)
working days of the date the notice was sent, the CITY shall have the right to
damage, alter, modify, change or remove the PROJECT providing the following
terms and conditions are met:
C. In the event that the CITY decides to damage alter, modify, change, or remove the
PROJECT to the extent the PROJECT can be practically removed, the
CONSULTANT shall have the first right of refusal to purchase all or part of the
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PROJECT at the fair market value as determined by a qualified professional
appraiser selected by the CITY and CONSULTANT for which the cost shall be
shared by the CITY and the CONSULTANT. The CONSULTANT shall have the
right to have his name removed from the PROJECT as alternative remedy, or
other remedies shall be negotiated with the CITY at the time.
D. In the event of an unanticipated disaster whereby the PROJECT becomes
substantially damaged or poses a hazard to lives and property, the PROJECT
may be removed from the site by the CITY without first obtaining the
CONSULTANT'S permission.
14. CARE OF ARTWORK AFTER COMPLETION AND INSTALLATION
For the lifetime of the PROJECT, the CITY shall maintain and repair the PROJECT and
shall°have the right to determine if and when repairs or restorations to the PROJECT are
necessary.. The specific lifetime shall be determined by mutual agreement of CITY and .
CONSULTANT. For purposes of this Agreement, lifetime shall not be less than ten (10) years.
For the lifetime of the PROJECT, the CONSULTANT shall have the right to approve all
major repairs and restorations, provided, however, that the CONSULTANT shall not
unreasonably withhold approval for any repair or restoration of the PROJECT. If the
CONSULTANT unreasonably fails to approve any repair or restoration, the CITY shall have.the
right to make or cause to be made major repairs and restorations. During the five (5) years
following execution of this Agreement by the CITY, the CONSULTANT shall be given the
opportunity to make or personally supervise major repairs and restorations for a fee to be
negotiated at the time. For the purposes of this Paragraph, "major repair" means any restoration
of the PROJECT to sound conditions that requires specialized professional services. All repairs
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and restorations shall be made in accordance with recognized principles of conservation and
maintenance specifications as provided in Documentation of PROJECT.
All parties acknowledge that the PROJECT may be subject to graffiti applied by
unknown parties. The CITY reserves the right to determine which measures, if any, -.will be taken
to remove the graffiti.
15. HOLD HARMLESS
CONSULTANT shall protect, defend, indemnify and save hold harmless CITY, its
officers, officials, employees, and agents from and against any and all liability, loss, damage,
expenses, costs (including without limitation, costs and fees of litigation of every nature) arising
out of or in connection with CONSULTANT's 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. CITY shall be reimbursed by -CONSULTANT for all costs and:-
attorney's fees incurred -by CITY in enforcing this obligation.-
16. WORKERS' COMPENSATION INSURANCE
Pursuant to California Labor Code Section 1861, CONSULTANT acknowledges
awareness of Section 3700 et seq. of said 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; and shall indemnify,
defend and hold harmless CITY from and against all claims, demands, payments, suit, actions,
proceedings, and judgments of every nature and description, including attorneys fees and costs
presented, brought or recovered against the CITY, for or on account of any liability under any of
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said acts which may be incurred by reason of any work to be performed by CONSULTANT
under this Agreement.
CONSULTANT shall maintain workers' compensation insurance in an amount of not
..less than One Hundred Thousand .Dollars ($100,000) bodily injury by accident, each occurrence,
One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, Two
Hundred Fifty Thousand Dollars ($250,000) bodily injury by disease, policy limit.
CONSULTANT shall require all subcontractors to provide such workers' compensation
insurance for all of the subcontractors' employees. CONSULTANT shall furnish to CITY a
certificate of waiver of subrogation under the terms of the workers' compensation insurance and
CONSULTANT shall similarly require all subcontractors to waive subrogation.
1.7. GENERAL LIABILITY INSURANCE
t In addition to the workers' compensation insurance and CONSULTANT's covenant to
indemnify CITY, CONSULTANT shall obtain and furnish to CITY, a policy of general public
liability insurance, including motor vehicle coverage covering the PROJECT. The policy shall
indemnify CONSULTANT, its officers, agents and employees, while acting within the scope of
their duties, against any and all claims arising out of 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 $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
$1,000,000 for this PROJECT. The policy shall name CITY, its agents, its officers, employees
and volunteers as Additional Insureds, and shall specifically provide that any other insurance
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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 the above -mentioned insurance contain a self -insured
.retention, or a "deductible" or any other similar form of limitation -on the required coverage.
18. PROFESSIONAL LIABILITY INSURANCE
CONSULTANT shall furnish-. a professional liability insurance policy covering the work
performed by it hereunder. Said policy shall provide coverage for CONSULTANT's
professional liability in an amount not less than $1,000,000 per occurrence and in the aggregate.
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 -will make every effort to maintain. similar insurance during the
required extended period of coverage following project completion, including the
requirement of adding all additional insureds.
C. 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. .
D. The reporting of circumstances or incidents that might give rise to future claims.
19. CERTIFICATES OF INSURANCE
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:
A. provide the name and policy number of each carrier and policy;
00agree/meehan/11/29/00 15
B. shall state that the policy is currently in force; and
C. shall promise that such policies shall not be suspended, voided or canceled by
either party, reduced in coverage or in limits except after thirty (30) days' prior
written notice;. however, ten (10) days' prior written notice in the event of
cancellation for nonpayment of premium.
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 provisions for indemnification of CITY by CONSULTANT under the Agreement. CITY or
its representative shall at all times have the right to demand the original or a copy of all said
policies of insurance. CONSULTANT shall pay, in a prompt and timely manner, the premiums
on all insurance hereinabove required.
20. 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 the CITY. CONSULTANT shall
secure at its 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 services to be performed hereunder.
Except as CITY may specify in writing, CONSULTANT shall have no authority,
expressed or implied, to act on behalf of CITY in any capacity whatsoever as an agent.
CONSULTANT shall have no authority, expressed or implied, pursuant to this Agreement, to
bind CITY to any obligation whatsoever.
00agree/meehan/ 11 /29/00 16
21. TERMINATION OF AGREEMENT
All work required hereunder shall be performed in a good and workmanlike manner
A. CITY or CONSULTANT may, at its option, elect to terminate this Agreement, in
which event, the work completed under the terms of this Agreement shall become
the property of the CITY and CITY shall pay CONSULTANT for work
performed to the date of termination but not to exceed payment as specified in
Section 4, "Compensation."
B, Remedies to the CITY: In the event that
1. that CONSULTANT shall default in the performance or fulfillment of any
covenant or condition herein contained on his part to be performed or
fulfilled and shall fail to cure such default within ten (10) days following
the service on him or a written notice from the CITY specifying the
default or defaults complained of and the date on which his rights
thereunder will be terminated as hereinafter provided if such default or
defaults is or are not cured, or
2. that CONSULTANT shall file a voluntary petition in bankruptcy, or
3. that CONSULTANT shall make a general assignment for the benefit of
creditors then and in either or any said events, CITY may, at its option,
without further notice or demand upon CONSULTANT, immediately
cancel and terminate this Agreement and terminate each, every and all of
the rights of CONSULTANT and of any and all persons claiming by or
through CONSULTANT under this Agreement. The rights and remedies
of CITY as hereinabove set forth are cumulative only and shall in no way
00agree/meehan/11/29/00 17
•
•
be deemed to limit any of the other provisions of this Agreement or
otherwise to deny to CITY any right or remedy at law or in equity which
CITY may have or assert against. CONSULTANT under any law in effect
at the date thereof or which may hereafter be enacted -or become effective,
_it being the intent hereof that the rights and remedies of CITY, as
hereinabove set forth, shall supplement or be in addition to or in aid of the
provisions of this Agreement and of any right or remedy at law or in
equity which CITY may have against said CONSULTANT.
22. ASSIGNMENT AND SUBCONTRACTING
This Agreement is a personal service contract and the supervisory work hereunder shall
not be.delegated by CONSULTANT to any other person or entity without the express written
consent of CITY.
CITY expressly authorizes the use of subcontractors employed by the CONSULTANT
for the Project. A proposed list of subcontractors shall be submitted in writing to CITY in
advance. Each subcontractor shall meet the insurance requirements as set forth in this
Agreement. CITY reserves the right to reasonably reject the use of a listed subcontractor. The
CONSULTANT shall be responsible to the CITY for the actions of persons and firms
performing subcontract work. The CONSULTANT and any Sub consultants utilized by the
CONSULTANT shall be independent contractors and not agents of the CITY hereunder.
In a dispute between the CONSULTANT and one of its subconsultants, CITY will not be
interpleaded in any judicial or administrative proceeding, nor will -the CITY be a party in the
dispute.
00agree/meehan/11/29/00 18
23. COPYRIGHTS/PATENTS
If a copyright is registered with the U.S. Copyright Office, the CONSULTANT shall
provide the CITY with a copy of the application for registration, the registration number and the
effective date of registration. Except:as provided in this Agreement, the CONSULTANT retains
all copyrights in the PROJECT including its preliminary design and incidental works created for
the PROJECT.
24. 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.
25. NOTICES
Any notice or special instructions required to be given in writing under this Agreement
shall be given either by personal delivery to CONSULTANT's agent (as designated in Section 1
hereinabove) or to CITY's Director of Community Services 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, addressed as follows:
TO CITY:
TO CONSULTANT:
Director of Community Services Firefly Studios, LLC
CITY of Huntington Beach Howard & Kathleen Meehan
2000 Main Street 7 Avenida Vista Grande #314
Huntington Beach, CA 92648 Santa Fe, NM 87505-9199
00agree/meehan/11 /29/00 19
26. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid unless in
writing and duly executed by both parties.
27. CAPTIONS
Captions of the sections of this Agreement are for convenience and reference only, and
the.words contained therein shall in -no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Agreement
28. SECTION HEADINGS.
The titles, captions, section, paragraph, 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.
29. 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 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,
00agree/meehan/ 11 /29/00 20
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.
30. 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 of the parties hereto shall retain
an originally signed copy hereof. Each duplicate original shall be deemed an original instrument
as against any party who has signed it.
31. 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.
32. 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.
00agree/meehan/I1/29/00 21
33. ATTORNEY'S FEES
In the event suit is brought by either party to enforce the terms and provisions of this
Agreement or to secure the performance hereof, each party shall bear its own attorney's fees.
34. ENTIRETY
The Agreement contains the entire agreement between the parties respecting the subject
matter of this Agreement and supercedes all prior understanding and agreements whether oral or
in writing. The foregoing sets forth the entire Agreement between the parties.
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.
FIREFLY STUDIOS, LLC, a New Mexico
Limited Liability Corporation
IN
rQ Ah lam► Meek
print name
ITS: (circle one) Chairma Presiden Vice
President
AND
CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
California
N,fayor-,
ATTEST:
4_- .c
oil/of
00agree/meehan/11/29/00 22
DANIELS INS T9899186-. 02/08/01 16:51 f9:01/01 N0:057I
in
�y
caveIMNuoa T)
jai
THIS CERTIFICATE IS ISSUHD AS A MATTER OF INFORMATION
Daniels Ins. Sent& Fa
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
P.O. lax 4M
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDMG COVERAGE
Santa Fs, EY 57602
10081 SE2-4302
COMPANY
A Hartford tertlaa Center
"--
..---
COMPANY
Firstly stadio, LLC
8 Philadelphia Tns Co
COMPANY
T Ate. Vista O►mwe, t314
sent. Fs. NN 8780E-$19E
c
COMPANY
D
`C4VE0tAG1
:., .
THISISTO CERTIFY THAT THE POLICIES Op INSURANCELISTED13ELOW HAVE BEENISSUEOTOTHE INSURED NAMED ABOVEFORTHEPOLICYPERIOD
INDICATED,NOT W ITHSTANOINGANY REQUIREMENT, TERMOR CONDITIONOP ANYCONTRAC Y OROTHERDOCUMENT W ITHRE$PECT TO WHICHTH(g
CERTIFICATE MAYBE 4$UED OR MAY PERTAIN,
TH£ INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAIL CLAIMS.
CO 171E OF waUNANOE
LTM
/OL?0r NUa1EEN p0L(DY EFFECTIVE POUCY 1111"ATION IaMITE
DATE (ww"IYY) DATE (Maswivy)
A
OENERALLIASILITY
348111AK 7 , NTFO E.C.
11124/00
1112601
OE! ERAL AOQREOATE
S t,000,000
K
COMMERCIAL GENERAL LIABILITY
PRODUCTS-COW/OP AGO
=
J CLAIMS MADE w l OCCUR
PERSONAL a ADV INJURY
i
OWNER'S a CONTRACIOR•S PRO?
EACH OCCURRENCE
$ 1,000,000
I
-. _.
PIKE DAMAGE (Any am firs)
S 300.000
MED EIP (Any a s person)
t 10 OOp
AUTOMOEa-!
LIAga.ITY
COMBINED SINGLE LIM11
3
ANY Au1D
ALL OWNED AUTOS
— ...
BODILY mlJURr
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SCHEDULED AUTOS
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AU?0 ONLY • !A ACCIDENT
t
ANY AMp
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EACH ACCIDENT
{ -
AGGREGATE
II
EaCESSuAIILITT
EACH OCCURRENCE
UMBRELLA FORM
_.__ - -
AGGREGATE
--- ---- -
t
OIP*.R THAN I. MBfELLA FORM
WORYERE COMpEMsILTION AND
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Limit: 100000g/RotentIon: 1000
t►TtON 010 i N AA TIONE►VEN
All operations of the Insured par Volley atndltlsns. Lla►: Cent. U.S.
CERTIFtCATMQt�gkR
`C AtMF1t AT;l�hl `.:
SHOULD ANY OF TKII AEOW DIOCAM50 POLIC190 EE CANCILLEO EEPOEE THE
City of Huntington Desch
EXPMATION DATE TINMEOP, THE MUNO COMPANY WAL E1OKMOMMMALL
Risk Management
30 04" WRITTEN NOTICSTO THE CERMCATE HOLDER NAMED TO T„E LIFT.
2000 Main Street
IN-- AWLTA111111101 011111KINAD, 11111 nUUDKIOBUOMMW
Huntington leash. CA 92M
........IIBF.
Post -it" Fax NWe 73271 Dato
_ O ems► James N Kooh
To From
s�+ti 1lIRd`
Ux ! CERTIFICATE: oS/001f 00001
i:i�tt7Npt Co.
Phone s Phone e
All 0
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t! . 1 f
•
•
CITY OF HUNTINGTON BEACH
APPLICATION FOR INSURANCE REQUIREMENTS WAIVER OR MODIFICATION
1. Name/Title/Department of Requesting Staff Member Ron HaWn, Director, Commiimityi Services
2. Date of Request February 9, 2001
3. Name of Contractor/Permittee_ Firefly Studios
4. Description of work to be performed
plazas and ane entry sr„l ntureio, ithin South Beach Phhsa I
Peal opment pxaject
5. Value of Contract $768,000
6. Length of Contract -n days
7. Type of Insurance Waiver or Modification Requested: $1O00 Se1f Insurance Retention
(a) Limits: T /1000, 000 (b) Coverage
8. Have you contacted Risk Management to determine if professional liability coverage is available through
SCOPE? no
9. Reason for Request for Waiver or Reduction of Limits The standard insurance for ubUit
art is $1,000 deductible. The cost to provide a non -deductible
policy is prohibitive to the artists.
10. Identify the risks to the City if this request for waiver or modifications granted T f the r i ty ba s to
collect on the insurance to complete this projects, the insurance
would pay all but the.$1 0 deducpible.
Department Head Signature
(This section to be completed by Risk Manager)
Recommendation: Approve Deny
Risk Manager's Signature/Dat
(This section to be completed by City Attorney)
Recommendation: Approve (/ Deny, t
City Attorney's Signature/Date
Settlement Committee a
submit this form to City
City -Council approva
- RCA after considerat' r
j mp/mis/inswaiver/3/14/00
--/-\ (, h _ -_.
;efu—iFed for this waiver. If Settlement Committee approval is required,
be placed on the agenda. Recommendation: ApproveDeny_
is no equired for this waiver. If City Council approval is required, attach this form to the
the Settlement Committee. This insurance waiver [is not] on City Council agenda.
Reviewer's initials:
A��L—&.rL,
I—"
01/� /2001. 15:48 5054662521 MEEHAN*FIREFLY STDIO PAGE 02
ra�rtsyW'e B® M43 � • P.01/el
lb to
2000 IIWifi ft a, WHOM" 926"
--
DF—CLAKATON of NON-CMrLOYr K 5TATU5
If, order to aomPly with City Council Kosolution No. 6177, you are required to provide prooF of
`jHor6mW Compensation insurance. If you have. no employees, this form must bs sianed and returned
tot
C•v of Huntinston 15eac6
Risk Manasemg-t Division
Z000 Main Street
Hunting*on beach, CA PZ6+5
l ctrtify that in the pe4onsance of tiro activity Or work For w6iG6 this permit is issuad, l shall not
employ any Person in any manner so as to 6aeAme sub-sa to California Workers, Compensation
insurance rg9wiramente.
I authorize the City cf tIuntinsgton tjearA to imfnedistely and retrosetivaly re -'eke the lidense or
permit issuoel under this dec�arition if Dire any employee(s) or became su6ect to tke provisions of
Ae laws-r@quirina.Worhery' Compensation Insurance.
APplicant/CoemPsny N.me-
4,Z'
Address_ 77 V I ST e, ie 19
Applieent+s 5i4nature: ���Y1 / (.UGC �c DaeeS /e�.1//
Location ar' isnedt _ 5err-..
Teler6one Num6en
TOTAL P.81