HomeMy WebLinkAboutC-9243-1 - PSA for 1400 Bristol Residential ProjectI
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�4 AMENDMENT NO. ONE TO
Cr PROFESSIONAL SERVICES AGREEMENT
WITH KIMLEY-HORN AND ASSOCIATES, INC. FOR
V 1400 BRISTOL RESIDENTIAL PROJECT
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. One") is made and entered into as of this 9th day of April, 2024
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and KIMLEY-HORN AND ASSOCIATES,
INC., a North Carolina corporation ("Consultant"), whose principal address is 421
Fayetteville Street, Suite 600, Raliegh, NC 27601, with a local address of 1100 W. Town
and Country, Suite 700, Orange, CA 92868, and is made with reference to the following:
RECITALS
A. On February 15, 2023, City and Consultant entered into a Professional Services
Agreement ("Agreement") to prepare environmental documentation for the 1400
Bristol Residential Project ("Project").
B. The parties desire to enter into this Amendment No. One to reflect additional
Services not included in the Agreement, as amended, and to increase the total
compensation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
SERVICES TO BE PERFORMED
Exhibit A to the Agreement shall be supplemented to include the Scope of
Services, attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Exhibit A to the Agreement and Exhibit A to this Amendment No. One shall
collectively be known as "Exhibit A." The City may elect to delete certain Services within
the Scope of Services at its sole discretion.
2. COMPENSATION TO CONSULTANT
Exhibit B to the Agreement shall be supplemented to include the Schedule of
Billing Rates, attached hereto as Exhibit B and incorporated herein by reference. Exhibit
B to the Agreement and Exhibit B to Amendment No. One shall collectively be known as
"Exhibit B."
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed One Hundred Fourteen
Thousand Two Hundred Fifteen Dollars and 00/100 ($114,215.00), without prior
written authorization from City. No billing rate changes shall be made during the term of
this Agreement without the prior written approval of City."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. One,
including all reimbursable items and subconsultant fees, in an amount not to exceed Five
Thousand Dollars and 00/100 ($5,000.00).
3. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Kimley-Horn and Associates, Inc. Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEYS OFFICE
Date: 'I /u J2q
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: y�l5l2U�'Gi
By: By:
ar n C. Harp GraOX Leung
City Attorney v�yl Ci anager
Y
ATTEST:
Date:
By:
Leilan4''- own
City Clerk
SEW POST
C' �P
��IFORi
CONSULTANT: KIMLEY-HORN AND
ASSOCIATES, INC., a North Carolina
corporation /) //-- ''
Date: q /gj2+%
By:
Chad E. Philh'p
Vice President
Date:
By: — -
Darren J. Adrian
Senior Associate
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
Kimley-Horn and Associates, Inc. Page 3
EXHIBIT
SCOPE OF SERVICES
Kimley-Horn and Associates, Inc. Page A-1
Kimley»>Horn
Attachment A
Residences at 1400 Bristol Project
Scope of Work Change Order No. 1
The following summarizes the additional work efforts.
Project Description. After initiation of the Addendum, the project description changed to include a
pedestrian bridge between the 1300 Bristol residential building and the proposed 1400 Bristol
residential building. The change extended the project schedule and required revisions to the Project
Description and Addendum assumptions.
Air Quality, Greenhouse Gas, Energy, and Noise Modeling. We conducted new modeling to evaluate
the 1300 Bristol site as an occupied residential use rather than as an office use. We also spent time
determining whether additional modeling was required to address the new off -site sewer line
improvements. Additional effort was spent to address the City's proposed changes to the John Wayne
Airport noise contours and proposed changes to General Plan policies and the Municipal Code.
Project Management and Meetings. We participated in additional meetings to address issues
including but not limited to changes to the Project Description, changes to the noise contours and
policies, the addition of the off -site sewer line improvements and provision of parkland (to ensure
consistency between CEQA documents being prepared by different consultants to the City).
EXHIBIT B
SCHEDULE OF BILLING RATES
Kimley-Horn and Associates, Inc. Page B-1
Kimley»)Horn
Attachment B
Residences at 1400 Bristol Project
Cost Estimate and Fee Schedule Change Order No. 1
Sr.
Analyst/
Analyst/
Graphics/
Project
Project
Technical
Technical
Admin.
Total
Task
Director
Manager
Staff
Analyst
Support
Hours
Total Cost
Addendum
Project Description
3
9
g
21
$4,040
Revisions and New Analysis
Subtotal
$4,040
Project Management and
Coordination; Meetings and Hearings
Project Management and
3
0
0
3
$960
Hearings
Subtotal
$960
Professional Labor Costs
$5,000
Total Cost Estimate
$5,000
Kimley-Horn will not exceed the total cost plus maximum fee shown without authorization from the City. Individual task
amounts are provided for budgeting purposes only. Kimley-Horn reserves the right to reallocate estimated amounts
among tasks as necessary.
Other Direct Costs: Outside Printing/Reproduction, Delivery Services/USPS, and Misc. Field Equipment/Supplies, will be
billed at actual cost plus 5%.
Office Expenses: 5% of labor fees are included to cover direct expenses, such as in-house duplicating and blueprinting,
telephone/mobile calls, electronic messaging, postage.
Hourly Labor Rate Schedule
Classification
Rate
Analyst
$130 -
$175
Professional
$170 -
$225
Senior Professional 1
$220 -
$300
Senior Professional II
$290 -
$360
Senior Technical Support $140 -
$230
Support Staff
$100 -
$125
Technical Support
$120 -
$155
1
t`n
PROFESSIONAL SERVICES AGREEMENT
�! WITH KIMLEY-HORN AND ASSOCIATES, INC. FOR
a-- 1400 BRISTOL RESIDENTIAL PROJECT
U THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 15th day of February, 2023 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and KIMLEY-HORN AND ASSOCIATES, INC., a North Carolina corporation
("Consultant"), whose address on file with the Secretary of State is 421 Fayetteville Street,
Suite 600, Raleigh, NC 27601, with a local address of 1100 W. Town and Country Road,
Suite 700, Orange, CA 92686, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to prepare environmental documentation for the
1400 Bristol Residential Project ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on March 31, 2025, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed One Hundred Nine
Thousand Two Hundred Fifteen Dollars and 00/100 ($109,215.00), without prior
written authorization from City. No billing rate changes shall be made during the term of
this Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
Kimley-Horn and Associates, Inc. Page 2
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Dana C. Privitt, AICP to be
its Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Community Development Department.
City's Senior Planner or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
Kimley-Horn and Associates, Inc. Page 3
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services contemplated
by this Agreement (collectively, the "Indemnified Parties") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys'
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or
indirectly) to any breach of the terms and conditions of this Agreement, any Work
performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project to the extent caused by the negligent, reckless, and/or wrongful acts, errors
and/or omissions of Consultant, its principals, officers, agents, employees, vendors,
suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of
them or for whose acts they may be liable, or any or all of them.
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole or
active negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action on
or to enforce the terms of this Agreement. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
Kimley-Horn and Associates, Inc. Page 4
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Kimley-Horn and Associates, Inc. Page 5
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
Kimley-Horn and Associates, Inc. Page 6
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
Kimley-Horn and Associates, Inc. Page 7
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Senior Planner
Community Development Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Dana C. Privitt, AICP
Kimley-Horn and Associates, Inc.
1100 W. Town and Country Road, Suite 700
Orange, CA 92686
Kimley-Horn and Associates, Inc. Page 8
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
Kimley-Horn and Associates, Inc. Page 9
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Kimley-Horn and Associates, Inc. Page 10
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a Californi m nicipal corporation
Date: 2- Date.- ZZj
By: By:
Aaron arp \�y3 Gr e . Leung
City A o ney o32. C' anager
ATTEST: CONSULTANT: KIMLEY-HORN AND
Date: 3 3c) /?1�Z3 ASSOCIATES, INC., a North Carolina
corporation
Date:
A
r. ___
LeiIani 41.wn
City Clerk
Signed in Counterpart
By:
Chad E. Phillips
Vice President
Date:
Signed in Counterpart
By:
Darren J. Adrian
Senior Associate
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Kimley-Horn and Associates, Inc. Page 11
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: Z1 a —I a-'4,
Aaron Marp V 3
City A o ney d3a.
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
CONSULTANT: KIMLEY-HORN AND
ASSOCIATES, INC., a North Carolina
corporation
/
Date: 3�3/Zt�23
By: B .
Leilani I. Brown ad E. P illips
City Clerk Vice President
Date: f5 I*3 !%_—
By:
D&tfen J. Adrian
Senior Associate
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Kimley-Horn and Associates, Inc. Page 11
EXHIBIT
SCOPE OF SERVICES
Kimley-Horn and Associates, Inc. Page A-1
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Attachment A
Scope of Work
The City has made a preliminary determination that an Addendum to the General Plan EIR can be
prepared for the 1400 Bristol Residential Project. The City recognizes that should the facts including the
technical documentation find that the project will have one or more significant effects not discussed in the
previous EIR or significant effects previously examined will be substantially more severe than shown in the
previous El R, then an Addendum would not be appropriate and either an Initial Study leading to a Mitigated
Negative Declaration (IS/MND) or an EIR may be required.
Task 1— Project Initiation and Peer Review
Kick-off Meeting
Kimley-Horn staff will participate in a kick-off meeting with City staff and the Applicant to confirm the
description of and approach to the project, the Scope of Work, schedule, and communication and
administrative record protocol. The meeting discussion would include any known project issues, and agency
and community issues that need to be considered through the process.
Data Review and Site Reconnaissance
Kimley-Horn will survey the project site and surrounding area. We will review readily available project
materials and reference data, including planning and policy documentation. Kimley-Horn will assess
whether available information is adequate and complete. The City will be notified if additional information
is needed.
Technical Analysis Peer Review
Our Scope of Work assumes that the following reports and technical documentation will be provided to
Kimley-Horn for our review and incorporation into the Addendum. All studies and documentation should
identify assumptions and methodology. If any of these studies are not available, Kimley-Horn can provide
the City with a supplemental scope for their preparation.
■ Phase I Environmental Site Assessment
■ Geotechnical Feasibility Study
■ Hydrology and Drainage Study (City review)
■ Preliminary Water Quality Management Plan (WQMP) (City review)
■ Construction Management Plan
■ Capacity Availability for Wet Utilities: Water and Sewer Demand Studies
■ Visual Simulations and/or Renderings and Shade/Shadow Modeling (if required by the City)
■ Level of Service Analysis; a Vehicle Miles Traveled (VMT) is not required.
Kimley-Horn will review the draft technical reports and information for adequacy pursuant to CEQA review
requirements and the City's CEQA procedures. Technical review of studies to be reviewed by the City are
noted above. Our review of all the documents will focus on the appropriateness/thoroughness of the
methodologies and analyses; whether the analyses' conclusions are supported by factual/credible
evidence; consistency among reports and accurate representation of project -related information; and,
whether the analyses meets the applicable CEQA provisions and the State CEQA Guidelines. Written
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comments on the technical studies will be provided, as needed. Upon receipt of revised technical studies,
we will review the revised reports to ensure that all necessary and required comments have been
addressed and outstanding issues resolved.
Kimley-Horn's Scope of Work includes the preparation of the remaining needed technical analyses, as
provided in Task 2. Kimley-Horn's technical analyses will be incorporated directly into the Addendum.
Deliverables All deliverables will be transmitted electronically unless otherwise noted.
■ Participation in kick-off meeting (virtual or in person)
■ Kick -Off meeting agenda, meeting notes and action items
■ Identification of project data needs
■ Review of noted technical studies (one round of review of draft and revised draft studies and
information)
Task 2—Addendum Documentation Including Kimley-Horn Technical Reports
Project Description
Based on information provided by the City and the Applicant, Kimley-Horn will prepare the Project
Description that articulates the characteristics of the project. The draft Project Description will be provided
to the City for review prior to preparation of the Addendum and technical analyses provided by Kimley-
Horn to ensure concurrence with the key elements of the project that will be carried through into the
analyses. Any changes to the project that would result in changes to the Project Description or Addendum
analyses, including technical studies will require a budget augment.
It is our understanding that the Applicant is requesting the consideration of the following discretionary
actions to allow for the development of the office site with six -story podium building with five levels of
residential development: 221 multi -family units including 30 affordable units, three levels of parking
including two subterranean levels, and project amenities.
■ General Plan Amendment to change the land use designation from General Commercial Office (CO-
G) to Mixed -Use -Horizontal (MU-H2)
■ Planned Community Development Plan (PC-11) Amendment. The site is zoned industrial and the
PC amendment would include the project site in the PC-11 Residential Overlay
■ Development Agreement
■ Major Site Development Review. Site development must be in accordance with applicable Planned
Community, as amended, and Municipal Code development standards and regulations pursuant to
Newport Beach Municipal Code Section 20.52.80 (Site Development Reviews) for the Project.
■ Affordable Housing Implementation Plan. A program specifying how the proposed Project would
meet the City's affordable housing requirements, in exchange for a request of 50 percent density
bonus and includes requests for any development standard waivers as well as density bonus
concessions/incentives.
■ Traffic Phasing Ordinance Study: A traffic study pursuant to Municipal Code Chapter 15.40 (Traffic
Phasing Ordinance).
■ Airport Land Use Commission Compatibility Determination.
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Checklist Topics
For each environmental topic, the Addendum will provide a summary of the findings of the General Plan
Program EIR for the respective threshold question; an evaluation of the potential impacts of the proposed
project; and a determination of whether the impact conclusions are consistent with the significance
determinations set forth in the General Plan Program EIR. Each topical analysis will also address cumulative
impacts and the General Plan policies and standard conditions and regulations that are applicable to
mitigate significant impacts of the project.
Agriculture and Forestry Resources; Mineral Resources; Wildfire. The proposed project would not impact
agricultural, forestry, or mineral resources or result in increased wildfire hazards. The project site is in a
developed urban area. The General Plan and the Farmland Mapping and Monitoring Program of the
California Resources Agency will be referenced to note that the site contains no Prime Farmland, Unique
Farmland, Farmland of Statewide Importance, or Forestry Resources. The General Plan and State resources
will be referenced to note that the site contains no mineral resources. With respect to wildfire, the CAL
FIRE Hazard Severity Zone Map for Orange County will be referenced to document that the project site is
not within or proximate to Very High Fire Hazard Severity Zone (VHFHSZ) zone for a Local Responsibility
Area.
Aesthetics and Visual Resources. Changes in the visual character of the project site and area associated
with the proposed change in land use will be addressed qualitatively using information provided by the
Applicant. This Scope of Work assumes that visual simulations, renderings, and/or shade -shadow modeling,
if deemed necessary by the City, would be provided to Kimley-Horn. The project's compliance with
applicable development standards, including PC-11, to minimize or preclude potential adverse impacts will
be addressed. As such, the project's compatibility with respect to massing, height, and building materials
with the surrounding area will be evaluated. Potentially significant aesthetic impacts will be evaluated in
comparison to applicable significance thresholds and to the findings of the General Plan Program EIR.
Air Quality Assessment. The project -specific technical analysis will evaluate air quality impacts associated
with the proposed project relative to impacts identified in the 2006 General Plan EIR. The significance of
air quality impacts will be determined in comparison to applicable significance thresholds and to the
findings of the General Plan Program EIR. Applicable General Plan policies and standard conditions will be
identified. This Scope of Work excludes a health risk assessment but can be prepared by Kimley-Horn if
requested.
Kimley-Horn staff will assess air quality emissions in accordance with the South Coast Air Quality
Management District's (SCAQMD's) recommended methodologies set forth in the SCAQMD CEQA Air
Quality Handbook. The analysis will be prepared in accordance with the criteria, standards, and provisions
of CEQA and will respond to the applicable checklist items within Appendix G of the CEQA Guidelines. The
analysis will evaluate if the project would result in any new or substantially more severe significant
environmental impacts as compared to the conclusions discussed in the General Plan Program EIR. The
analysis will include the following:
■ Demolition and construction emissions (equipment exhaust and fugitive dust) will be quantitatively
evaluated using the California Emissions Estimator Model (CalEEMod).
■ Operational emissions (i.e., area, mobile, and energy sources) will be quantified with CalEEMod.
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Modeled construction and operational emissions will also be compared to the SCAQMD Localized
Significance Thresholds to determine whether the localized impacts would occur. Carbon
monoxide hotspots and odors will be evaluated qualitatively.
Project consistency with the SCAQMD's latest Air Quality Management Plan (AQMP) will be
addressed.
Kimley-Horn will provide a qualitative odor analysis from the construction and operation of the
proposed project.
Biological Resources. The proposed project site is currently developed with a 38,764-sf commercial office
building. The only vegetation is limited to ornamental landscaping (trees, shrubs, and grass) along the
project site frontages, adjacent to the building, and in the surface parking lot. This Scope of Work does not
assume a biological assessment is required. The resources on the project site will be addressed to ensure
compliance with the analysis and requirements set forth in the General Plan Program EIR.
Cultural Resources and Tribal Cultural Resources. It is our understanding that the office building was
constructed in 1978, approximately 44 years ago. This Scope of Work assumes that the City can provide
substantial evidence to support that the on -site structure is not a significant historical resource. An
archaeological records search of the site including a radius buffer will be prepared by the California
Historical Resources Information System's (CHRIS) Archaeological Information Center. A field survey will
not be conducted.
The project requires a General Plan Amendment, which triggers agency to agency consultations under
Senate Bill (SB) 18 between Native American groups affiliated with the project area. Kimley-Horn will
contact the Native American Heritage Commission to obtain a tribal contacts list and request a Sacred Lands
file determination; Kimley-Horn will draft SB 18 letters for use by the City. Should a request for consultation
be received, the City will be required to enter into a consultation process. The City should anticipate a
request for consultation by one or more Native American tribes. Under SB 18, tribes have 90 days from
receipt of the letter to request consultation with the City, unless tribes have agreed to a shorter timeframe.
The City is required to send notice of a public hearing, at least 10 days prior to the hearing, to tribes who
have requested such notice. Because an Addendum to the General Plan Program EIR is proposed, Assembly
Bill (AB) 52 is not applicable. The Addendum will address any potential impacts to cultural resources
associated with excavation activities and identify policies provided in the General Plan Program EIR and
standard provisions of the City.
Energy. Impacts related to energy were not analyzed in the General Plan Program EIR because they were
not on the State CEQA Guidelines' Appendix G checklist until January 1, 2019, which was subsequent to the
certification of the General Plan Program EIR in 2006. However, the General Plan Program EIR did include
an analysis of the impacts on other public services and utilities, which included electricity and natural gas.
Because the electricity and natural gas analysis in the General Plan Program EIR does not respond to the
specific questions in the new energy section, the Addendum will provide a separate Energy section.
Kimley-Horn staff will analyze the energy implications of the project pursuant to Public Resources Code
Section 21100(b)(3), as well as Appendix F and Appendix G of the State CEQA Guidelines. These statutes
and guidelines require a project to describe, where relevant, the wasteful, inefficient, and unnecessary
consumption of energy caused by a project. The analysis will analyze energy consumption associated with
short-term construction activities, long-term operations, buildings, and transportation -related energy
during construction and operation. In addition to building code compliance, other relevant considerations
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may include, among others, the project's size, location, orientation, equipment use and any renewable
energy features that could be incorporated into the project. The effects of the project on local and regional
energy supplies, requirements for additional capacity, and consistency with applicable energy reduction
plans will also be analyzed.
Geology, Soils, and Paleontological Resources. The proposed project would include surface and grading and
excavation (two levels of subterranean parking) to prepare the site for construction. This Scope of Work
assumes that the Geotechnical Report provided by the Applicant, in addition to currently available
information, will be adequate to assess the project for potential for impacts associated with seismic activity
and site -specific soils/geotechnical conditions.
Based on the State CEQA Guidelines amendments, paleontological resources are addressed in the Geology
and Soils section. Kimley-Horn will have a paleontological resources records search conducted by the Los
Angeles County Museum, Vertebrate Paleontology Section. The findings will be addressed in the
Addendum. The Addendum will address any potential impacts to geotechnical and paleontological
resources associated with excavation activities and identify policies provided in the General Plan Program
EIR and standard provisions of the City.
Greenhouse Gas Emissions Assessment. The General Plan Program EIR did not evaluate the effects of
greenhouse gas (GHG) emission generation. At the time of approval of the General Plan Program EIR, the
contribution of GHG emissions to climate change was a prominent issue of concern. On March 18, 2010,
amendments to the State CEQA Guidelines took effect which set forth requirements forthe analysis of GHG
emissions under CEQA. Since the General Plan Program EIR has already been certified, the determination
of whether GHG emissions and climate change needs to be analyzed for this specific development is
governed by the law on supplemental or subsequent EIRs (PRC §21166 and CEO,A Guidelines §§15162 and
15163). GHG emissions and climate change are not required to be analyzed under those standards unless
it constitutes "new information of substantial importance, which was not known and could not have been
known at the time" the General Plan Program EIR was approved (State CEQA Guidelines §15162(a)(3)).
When the Housing Element was updated in 2013, the City analyzed GHG emissions. Although the City has
previously found that GHG impacts and climate change is not "new information" under PRC Section 21166,
the Addendum would include a GHG assessment for informational purposes.
Prepared by Kimley-Horn staff, the GHG assessment will include the following:
■ GHG Emissions Quantification. GHG emissions (i.e., nitrous oxide, methane, and carbon dioxide)
from both direct (i.e., area and mobile sources) and indirect sources (i.e., energy/water
consumption and wastewater/solid waste generation) will be quantified. Total construction GHG
emissions will be amortized into the GHG emissions inventory. CalEEMod will be used to quantify
GHG emissions.
■ Emissions Assessment and GHG Reduction Plan Consistency. The net change in project -related
GHG emissions will be assessed against the SCAQMD's proposed threshold and consistency with
applicable GHG reduction plans, City policies, and other regional/statewide GHG emissions
reduction strategies.
Hazards and Hazardous Materials. Kimley-Horn staff will review and summarize the findings of the
Applicant's Phase I Environmental Site Assessment (ESA) and address consistency with General Plan
findings.
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Hydrology and Water Quality. Given the project site is currently developed with office uses and surface
parking, the project is not anticipated to result in a substantial increase in storm water runoff due to any
changes in the amount of impervious surfaces. Based on the drainage study and the Preliminary Water
Quality Management Plan (WQMP) to be provided by the Applicant, the Addendum will address the
project's potential impacts on the existing local drainage system and hydrology of the area, as well as
potential surface and groundwater quality impacts. The mitigation program will be designed to conform to
Regional Water Quality Control Board (RWQCB) standards for construction site erosion and sediment
control and will include best management practices (BMPs) as well as any City -specific requirements and
measures set forth in the General Plan Program EIR.
Land Use and Planning. The Land Use and Planning section will address both the physical changes to the
project site and surrounding area associated with project implementation and the proposed project's
consistency with applicable plans and policies. The project requires a General Plan Amendment and an
amendment to PC-11. As a part of this section, the project's consistency with applicable General Plan
policies will be provided. Because the project is not regionally significant, a detailed discussion of regional
planning programs is not proposed. The review will be based, in part, upon the Applicant's project
application as well as City ordinances and policies, including but not limited to the City General Plan and
General Plan Program EIR, and the City's development standards including the residential development
standards set forth in PC-11.
The project site is within the 65 dBA CNEL contour for John Wayne Airport. As addressed in Section 4.8,
Land Use and Planning, of the General Plan Program EIR "...if residential development is constructed within
the 65 dBA CNEL noise contour in the Airport Area, land use conflicts would be significant." General Plan
Policy LU 6.15.24 requires that all development be constructed within the height limits and residential uses
be located outside of areas exposed to the 65 dBA CNEL noise contour specified by the Airport Environs
Land Use Plan (AELUP), unless the City Council makes appropriate findings for an override in accordance
with applicable law. As noted in this Scope of Work, a determination by ALUC is required. If ALUC makes an
determination of project inconsistency with the John Wayne Airport AELUP, an override determination is
required by the City Council.
Noise and Vibration. As noted above, the project site is within the 65 dBA CNEL noise contour for John
Wayne Airport and the project will be subject to a consistency determination by ALUC. The proposed noise
analysis, in part, will be prepared to evaluate whether the proposed residential development will result in
new or substantially more severe noise impacts than assumed in the General Plan Program EIR. Kimley-
Horn will prepare a technical noise analysis to evaluate the construction assumptions, duration, earthwork
and excavation volumes, and construction equipment proximity to the adjacent uses. The analysis will
include the following:
■ Existing Conditions and Regulatory Setting. Noise standards regulating noise impacts will be
discussed for land uses on and adjacent to the project site. A site visit will be conducted, and short-
term noise level measurements will be taken along the project area. Up to four short-term (10-
minute) noise measurements will be taken at various locations to establish ambient noise levels at
various land uses and areas in the project vicinity.
■ Construction Noise. Noise impacts from construction sources will be analyzed based on the
anticipated equipment to be used, length of a specific construction task, equipment power type
(gasoline or diesel engine), horsepower, load factor, and percentage of time in use. The
construction noise impacts will be evaluated in terms of maximum levels (Lmax) and hourly
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equivalent continuous noise levels (L,Q) and the frequency of occurrence at adjacent sensitive
locations.
■ Vibration. An analysis of construction vibration impacts will be based on the Federal Transit
Administration's (FTA's) vibration analysis guidance. Analysis requirements will be based on the
sensitivity of the area, specific construction activities, and Noise Ordinance specifications. The
analysis will examine whether the project would generate excessive groundborne vibration.
■ Operational Noise. On -site noise generating activities will be addressed and analyzed for potential
impacts to the adjacent uses and will be assessed against the applicable Land Use Noise and
Compatibility Matrix and Interior/Exterior Noise Guidelines. Stationary noise sources will be
quantitatively assessed. On -site and off -site noise impacts from vehicular traffic will be assessed
using the U.S. FHWA Traffic Noise Prediction Model (FHWA-RD-77-108). The 24-hour weighted
Community Noise Equivalent Levels (CNEL) will be presented in a tabular format.
■ On -Site Noise. The project site is located within the John Wayne Airport 65 dBA noise contour. The
analysis will qualitatively address consistency with the City's applicable General Plan policies and
the ability for the project to achieve interior noise level standards. The noise analysis will evaluate
the project impacts relative to the General Plan Program EIR.
Population and Housing. The Addendum will discuss potential impacts associated with changes in
population and housing anticipated by the implementation of the proposed project. The focus of the
analysis will be a comparison of the amount and type of growth anticipated with implementation of the
proposed project with the growth projected in the General Plan inclusive of the adopted 6"' Cycle Housing
Element Update, and the policies addressing growth in the City's planning documents.
Public Services, Facilities, and Utilities. Kimley-Horn will assess potential impacts to public services based
on coordination with City departments and agencies, and readily available information. An analysis of
information provided by these parties. The utilities analysis will be based on information obtained by
coordinating with the respective agencies and information provided by the Applicant responsible for
addressing the provision of wet and dry utilities to the project site. Using this information, Kimley-Horn will
assess whether the net change could have significant impacts. The evaluation will focus on the potential
need to extend or expand utilities and the increased demand on services, including fire and police
protection. We will evaluate the ability of the project to receive adequate service based on applicable City
standards; where services cannot be adequately met, these deficiencies will be identified.
Recreation. This section will evaluate the project's potential effects on recreational facilities and specific
policies for the Airport Area as set forth in the General Plan. The significance of recreational impacts will be
determined in comparison to applicable significance thresholds and to the findings of the General Plan
Program EIR. Applicable General Plan policies and standard conditions will be identified.
Transportation Assessment. Kimley-Horn will incorporate the Level of Service (LOS) Traffic Study being
prepared by the City's traffic consultant. As previously noted, we will review the report for compliance with
CEQA requirements for an Addendum. When the City's General Plan Program EIR was approved in 2006,
the applicable traffic threshold was LOS, not Vehicle Miles Traveled (VMT). On September 27, 2013, SIB 743
was signed into law and started a process that would change transportation impact analysis as part of CEQA
compliance. Because LOS was the applicable threshold when the General Plan Program EIR was approved,
settled CEQA case law dictates that LOS, not VMT, is the applicable CEQA standard for the proposed Project.
In addition to the LOS analysis, the City's traffic consultant will need to evaluate site access points. The
Addendum will also address transit and non -vehicular transportation opportunities in the project area.
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Revised Addendum
Following the review of the Screencheck Draft Addendum by the City, Kimley-Horn will revise the
Addendum to incorporate one consolidated set of comments. The Revised Addendum will be provided in
a version that shows all revisions in track -change for ease of review as well as a "clean" version of the
revised document. The Revised Addendum will be resubmitted to the City for review and Kimley-Horn will
address any final comments prior to finalizing the Addendum. If substantial new analysis is requested that
has not previously been prepared or considered in the Addendum, and/or substantive changes to the
Project Description occur, a budget augment will be required.
Mitigation Monitoring and Reporting Program
Kimley-Horn will prepare a Mitigation Monitoring and Reporting Program (MMRP) consistent with the City's
standard format to identify the General Plan Program EIR measures applicable to the proposed project, as
well as responsible parties and timing of implementation of measures.
Noticing
Kimley-Horn will also prepare and file the Notice of Determination (NOD) with the Orange County Clerk -
Recorder within five working days of action on the project. This Scope of Work includes payment of County
filing fees but excludes California Department of Fish and Wildlife (CDFW) filing fees.
Deliverables All deliverables will be transmitted electronically unless otherwise noted.
■ Project Description (two rounds of review)
■ Addendum (three rounds of review are assumed: Screencheck Addendum, Revised Screencheck
Addendum, Final Addendum)
■ Mitigation Monitoring and Reporting Program (two rounds of review)
■ Up to 10 print copies of Addendum with appendices on USB flash drives
■ Notice of Determination; County filing fees are included
Task 3 — Project Management and Coordination, Meetings and Hearings
Project Management and Coordination
Ms. Dana Privitt will serve as the Project Director responsible for supervision of the Kimley-Horn team and
documentation review for compliance with CEQA requirements and guidelines and City CEQA procedures.
Brian Leung will serve as Project Manager. Project management responsibilities include task scheduling and
assignment, contract administration and accounting, and coordination and communication with the City.
Meetings and Hearings
Kimley-Horn will maintain regular communication with the City to ensure compliance with the Scope of
Work, budget, and schedule and to disseminate project information in a timely manner. We would suggest
bimonthly conference calls with the City to address items including but not limited to status of deliverables
and outstanding issues.
For cost purposes, our Scope of Work assumes Dana and Brian and members of the project team including
technical specialists, as applicable, will participate in bimonthly project meetings/conference calls, as well
as the kickoff meeting and two City of Newport Beach public hearings (preparation and attendance). We
have also assumed attendance at the ALUC hearing. Participation in and attendance at additional meetings
and hearings and/or the need for additional management efforts exceeding the budget allocation will
require an amendment or would be billed on a time -and materials basis.
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Deliverables
■ Kickoff meeting (assumed in Task 1)
■ Bimonthly project meetings with City staff
■ Participation in two Newport Beach public hearings and one ALUC hearing
Assumptions and Deliverables
This Scope of Work assumes the baseline conditions, project description, and approach will not change
once the City issues the Authorization to Proceed.
All deliverables will be transmitted electronically unless otherwise noted in this Scope of Work.
This scope accommodates revisions based on a consolidated set of comments.
The following information will be provided by the City and/or Project Applicant:
■ Project Application
■ Full Plan set, including but not limited to the site plan, grading plans
■ Phase I Environmental Site Assessment
■ Geotechnical Feasibility Study
■ Hydrology and Drainage Study (City review)
■ Preliminary Water Quality Management Plan (WQMP) (City review)
■ Construction Management Plan
■ Capacity Availability for Wet Utilities: Water and Sewer Demand Studies
■ Visual Simulations and/or Renderings and Shade/Shadow Modeling (if required by the City)
■ Level of Service Traffic Study
■ Daily trip generation and VMT data for the currently entitled land use and the proposed project
■ Construction phasing and grading/excavation/paving quantities
■ Energy/water conservation measures and sustainable project features that will be incorporated
into the design
Technical analyses prepared by Kimley-Horn will be incorporated directly into the Addendum. Modeling
data will be provided as appendices to the Addendum. Preparation of stand-alone technical studies is not
assumed in this Scope of Work.
Task 1 Project Initiation and Peer Review
■ Participation in kick-off meeting (virtually or in person)
■ Kick -Off meeting agenda, meeting notes and action items
■ Identification of project data needs
■ Review of the following technical studies for CEQA compliance (one round of review of draft and
revised draft studies and information)
o Phase I Environmental Site Assessment
o Geotechnical Feasibility Study
o Hydrology and Drainage Study (City technical review)
o Preliminary Water Quality Management Plan (WQMP) (City technical review)
o Capacity Availability for Wet Utilities: Water and Sewer Demand Studies
o Level of Service Traffic Study
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Task 2—Addendum Documentation Including Kimley-Horn Technical Reports
■ Draft and Revised/Final Project Description (prior to the preparation of the Addendum; two rounds
of review)
■ Addendum (three rounds of review are assumed: Screencheck Addendum, Revised Screencheck
Addendum, Final Addendum)
■ Mitigation Monitoring and Reporting Program (two rounds of review)
■ Up to 10 print copies of Addendum with appendices on USB flash drives
■ Notice of Determination: filed with County Clerk -Recorder and State Clearinghouse
■ Payment of County and CDFW filing fees
Task 3 — Project Management and Coordination, Meetings and Hearings
■ Kickoff meeting
■ Internal project team and coordination with City ongoing through duration of project
■ Bimonthly project meetings with City staff
■ Two Newport Beach public hearings and one ALUC hearing
EXHIBIT B
SCHEDULE OF BILLING RATES
Kimley-Horn and Associates, Inc. Page B-1
Cost Estimate and Fee Schedule
Sr. Analyst/
Analyst/
Graphics/
Project
Project
Technical
Technical
Admin.
Task
Director
Manager
Staff
Analyst
Support
Total Hours
Total Cost
Project Initiation and Peer
Review
Kickoff Meeting
2
3
2
7
$1,750
Research and Investigation
2
4
6
$1,400
Peer Review of Technical
Studies
16
0
0
16
$4,400
Subtotal
$7,550
Addendum
Project Description
6
18
24
$5,400
Screencheck, Revised
Screencheck, and Final
30
65
85
25
205
$36,400
Addendum
Air Quality, Greenhouse Gas,
Noise, Energy
50
115
165
$30,500
MMRP and Notices
4
9
13
$1,950
Subtotal
$74,250
Project Management and Coordination;
Meetings and Hearings
Project Management and
Coordination
16
24
0
0
40
$9,800
Meetings and Hearings
24
18
12
0
0
48
$12,500
Subtotal
$22,300
Professional Labor Costs
$104,100
Office Expenses (% of labor),
Literature Reviews, Deliveries,
$5,115
Other
Total Cost Estimate
$109,215
Kimley-Horn will not exceed the total cost plus maximum fee shown without authorization from the City. Individual task
amounts are provided for budgeting purposes only. Kimley-Horn reserves the right to reallocate estimated amounts
among tasks as necessary.
Other Direct Costs: Outside Printing/Reproduction, Delivery Services/USPS, and Misc. Field Equipment/Supplies, will be
billed at actual cost plus 5%.
Office Expenses: 5% of labor fees are included to cover direct expenses, such as in-house duplicating and blueprinting,
telephone/mobile calls, electronic messaging, postage.
""44
EIhkqI6
Hourly Labor Rate Schedule
Classification
Analyst
Professional
Senior Professional I
Senior Professional II
Senior Technical Support
Support Staff
Technical Support
Preliminary Schedule
Rate
$130 - $175
$170 - $225
$220 - $300
$290 - $325
$140 - $230
$100 - $125
$120 - $155
We will provide our services as expeditiously as practicable with the goal of meeting the schedule outlined
below. The preliminary schedule is based on our best estimate of the timeframes for availability and
completeness of the Applicant's technical analyses, receipt of the traffic study prepared by the City's traffic
consultant (which includes data necessary to prepare the air quality, greenhouse gas, noise, and energy
evaluations) as well as City review of all documents. The schedule can be adjusted (including acceleration
of timeframes) in coordination with the City.
Task
Notice to Proceed/Kick-off Meeting
Month
1
Prepare Project Description
1
City Review
1
Kimley-Horn completes Project Description
1
Review Technical Studies'
1
Screencheck Addendum, includes technical analyses
1— 3b
City Review (2 weeks)
3
Revised Screencheck and Proofcheck Addendum
4
City Review
4
Public Hearings: Planning Commission, ALUC, City Council
tbd
a. Assumes receipt of Applicant's technical studies and Traffic Study at the kick-off meeting.
b. Assumes no substantial revisions to Applicant's technical studies. The timeframe for the
Applicant's team to revise technical studies would need to be identified by the Applicant.
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Covera a Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers, employees and any person
or entity owning or otherwise in legal control of the property upon which
Consultant performs the Project and/or Services contemplated by this
Agreement.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Kimley-Horn and Associates, Inc. Page C-1
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement or shall specifically allow Consultant or
others providing insurance evidence in compliance with these requirements
to waive their right of recovery prior to a loss. Consultant hereby waives its
own right of recovery against City, and shall require similar written express
waivers from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement shall be included as insureds under such
policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties The parties hereby agree to the
following:
Kimley-Horn and Associates, Inc. Page C-2
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
Kimley-Horn and Associates, Inc. Page C-3
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
Kimley-Horn and Associates, Inc. Page C-4
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