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HomeMy WebLinkAbout09 - Marina ParkCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 9 March 25, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Mark Reader, Project Manager 949 - 981 -5260, mreader @city.newport- beach.ca.us SUBJECT: Approval of Professional Services Agreements for the Preparation of Schematic Design Services, Environmental Impact Report, Geotechnical Investigation, and Project Management Services for Marina Park — Contract No. 3897 Recommendations: 1. Approve a Professional Services Agreement with Rabben /Herman Design Office for the preparation of schematic design services on the Marina Park project at a not to exceed price of $518,230 and authorize the Mayor and City Clerk to execute the agreement. 2. Approve a Professional Services Agreement with Michael Brandman Associates for preparation of the Environmental Impact Report (EIR) for the Marina Park project at a not to exceed price of $195,187 and authorize the Mayor and City Clerk to execute the Agreement. 3. Approve a Professional Services Agreement with TerraCosta Consulting Group for technical data in support of the EIR for the Marina Park project at a not to exceed price of $33,510 and authorize the Mayor and City Clerk to execute the Agreement. 4. Establish $37,400 (5% of the agreement amounts recommended above) for possible unforeseen circumstances. 5. Approve an Amendment to the Professional Services Agreement with Gable Engineering, Inc. for Project Management Services at a not to exceed price of $86,400 and authorize the Mayor and City Clerk to execute the Agreement. 6. Approve a Budget Amendment appropriating $1,070,727 from the unappropriated General Fund balance to Account No. 7411- C4002002 (Marina Park). This amount includes an additional $200,000 to cover future marine sediment/organism analysis and material disposal. Consultant selection and scope of work definition are on -going with consultant agreement award at a future Council meeting. Approval of Professional Services Agreements for the Preparation of Schematic Deign Services. Environmental Impact Report and Geotec finical Investigation for Marina Park - Contract No. 3897 March 25, 2008 Page 2 Background: In early 2005, the Council formed the City Council /Citizens Committee (Planning Committee) on Marina Park Planning. The Committee was charged to, among other things, develop possible future re -use alternatives for the Marina Park area for the City Council to consider. The Planning Committee met four times between March 2005 and September 2005 in a series of public meetings at Newport Beach City Hall. They heard presentations by eight different groups or persons advocating eight different future use scenarios for Marina Park. These proposals were summarized at a Council meeting in early 2006. Shortly thereafter, a plan came forth that combined two of the most prominent proposals from the Planning Committee. On October 10, 2006, the Council favorably received this Concept Plan (then called the Park + Marina Plan) and approved the scope of work. The City then entered into an agreement with Rabben /Herman Design Office (R/HDO) for further conceptual design, site analysis, programming needs assessment and cost estimating for the Marina Park Project in November 2006. A CounciVCitizens Committee on Marina Park Design was created and met five times to refine the design concepts presented by R/HDO and its subconsultant team. In October 2007, a concensus was reached by this design committee and R/HDO finalized the conceptual design and prepared a Master Plan Final Report. The concept plan proposes a new marina which includes a visiting vessel marina, a visitor side tie dock and floating docks to support youth and adult sailing programs. An 11,115 square foot sailing center building is proposed to support the needs of various sailing programs within the community and a 10,200 square foot Community Center is proposed to support the sailing center and other community programming needs. The remainder of the site will be a community park which will provide physical and visual access to the bay. The amenities of the park include a new Girl Scout house, tennis courts, half court basketball courts, tot lot, and children's water play area. The replacement of the 19th Street restroom is included within the consultants various scopes of work, as this was agreed to be added to the project by the Council /Citizens committee subsequent to completion of the Master Plan Final Report. On November 13, 2007 the City Council approved the Marina Park Concept Plan and Final Master Plan report and authorized the City Manager to bring forward a contract with R/HDO for the schematic design phase of the Marina Park Project and proceed with preparation of CEQA documents. Approval of Professional Services Agreements for the Preparation of Schematic Deign Services, Environmental Impact Report and Geotechnical Investigation for Marina Park - Contract No. 3897 March 25, 2008 Page 3 Discussion: RABBEN HERMAN DESIGN GROUP This contract with the Rabben /Herman Design Office and its subconsultant team will continue to refine its current conceptual design and provide schematic design services for the project. Also, the limits of work for the design effort will be expanded to include the contiguous beach and improvements north to the proposed replacement of the existing 19th Street restroom facility. The following is a summary of the consultant's services to be provided by this contract. R/HDO will refine the existing Master Plan and develop it to a schematic design level. R/HDO will modify plans as needed based upon the technical studies completed as a part of the CEQA process and also support the environmental consultant in preparation of the EIR. Please refer to the attached proposal for a complete discussion of services provided by R/HDO and its subconsultant team. Bundy /Finkle Architects, a subconsultant to R/HDO, will continue with their design efforts and prepare schematic level architectural plans for the Community and Sailing Centers, the lighthouse restroom and marina control building. Bundy /Finkle Architecture will also develop concepts for the replacement of the 19th Street restroom. URS /Cash, another subconsultant to R/HDO, will continue their design efforts and provide coastal engineering analysis, structural design of the seawalls and assist with dredge disposal evaluations for the marina. A new subconsultant to the R/HDO team, Fuscoe Engineering, will provide civil engineering services for the project such as additional surveying, preliminary grading plans, demolition plans, utility plans, and a Water Quality Management Plan (WQMP) to support the EIR documentation. R/HDO propose to conduct the above referenced work for a not to exceed fee of .. $518,230. This proposal does not cover the complete design scope of the project. After approval of the EIR, the consultant will be requested to provide a proposal for final engineering and design services. MICHAEL BRANDMAN ASSOCIATES Staff received proposals from two consulting firms believed qualified to prepare the EIR for this project. Staff selected Michael Brandman Associates (MBA) because of its past experience with the previous Marina Park Resort and Community Plan EIR prepared in 2004. This previous project experience will result in both a time and cost savings to the City. MBA's proposal also recognizes the high level of public interest in this project by including a reasonable budget for preparation, coordination, and communication in the EIR process at a not to exceed price of $195,187. Approval of Professional Services Agreements for the Preparation of.Schematic Deign Services, Environmental Impact Report and Geotechnical Investigaton for Marina Park - Contract No. 3897 March 25, 2008 Page 4 The attached agreement, including scope of services and budget, has been reviewed by the City Attorney's Office and Planning staff. In regards to schedule, the Draft EIR should be available for public review in 36 weeks and Final EIR approval accomplished within 62 weeks after work begins. TERRACOSTA CONSULTING GROUP Various technical studies will need to be completed to fully understand the possible impacts the construction of the project will have. Per discussions with the EIR consultant, Michael Brandman Associates, staff agreed to hire several of the technical consultants directly. The EIR lead consultant will still be responsible for management and coordination of these technical consultants, but the advantage of the City hiring these consultants directly will result in a cost savings in consultant fees. City staff has received and reviewed a proposal from TerraCosta to provide Geotechnical Investigation for onshore and offshore facilities as proposed for the Marina Park Project. TerraCosta Geotechnical was originally proposed as a subconsultant by the R/HDO team and has a good working history with all its other subconsultants. During the scope development and proposal formation, all parties agreed that it would be better for the City to hire Terra Costa directly. This is a sole source contract; however staff considers the consultant fee to be commensurate with the services outlined in the proposal. TerraCosta will provide important technical data as the basis for the structural design and ocean engineering to complete construction plans for the marina which will be prepared by URS /Cash and Associates. The services proposed by TerraCosta will complete the geotechnical analysis needed for schematic design and completion of the EIR. However this project is still in the conceptual design phase and will be moving through the CEQA process. Revisions to the project are unknown at this time. It is possible that after approval of the EIR, and when the City agrees to proceed with Final Engineering, some additional geotechnical investigation may be required. VARIOUS OTHER PROJECT SUPPORT SERVICES Gable Engineering, Inc., (Gable) has been providing project management services after entering into a Professional Services Agreement with the City on February 13, 2007 at a not to exceed amount of $50,000. On August 13, 2007, Gable and City entered into Amendment No. 1 for additional project management services of other various projects at a not to exceed amount of $104,000. The Marina Park project will require ongoing project management support through the preliminary design and CEQA process. Gable has submitted a proposal to continue managing this project through the preliminary design and EIR/Coastal Permit processing at a not to exceed amount of $86,400. Staff recommends approval of the attached Amendment No. 2 to Gable's agreement. Approval of Professional Services Agreements for the Preparation of Schematic Deign Services, Environmental Impact Report and Geotechnical Investigation for Marina Park - Contract No. 3897 March 25. 2008 Page 5 Additional consultant services to provide marine sediment and organism analysis, and evaluation of excavated soils will be required. It is necessary to determine if the dredged material can be reused for beach replenishment or off -site disposal. Staff estimates these consultant services will cost up to $200,000 and recommends appropriating the funds at this time. Negotiations with two firms are underway and a Professional Services Agreement will be brought before City Council for approval at a later date. Funding Availability: Upon approval of the recommended Budget Amendment, sufficient funds are available in the following account for the project: Account Description General Fund Proposed uses are as follows: Vendor Rabben/Herman Design Office Michael Brandman Assoc. TerraCbsta Consulting Group Gable Engineering, Inc. TBD- Future Support Services Various Prepared by: -7� �-� il, 1 -,04J Mark Reader 4f Project Manager Account Number 7411- C4002002 Total: Purpose Schematic Design EIR Prepration Geotechnical Analysis Project Management Marine /Organism Analysis and Dredging Disposal Contingency Total Submitted by: Amount $1,046,327.00 $1,070,727.00 Amount $ 518,230.00 $ 195,187.00 $ 33,510.00 $ 86,400.00 $ 200,000.00 $ 37,400.00 $ 1,070,727.00 aaum Director Attachments: PSA with Rabben /Herman Design Office PSA with Michael Brandman Associates PSA with TerraCosta Consulting Services Amendment No. 2 to PSA with Gable Engineering, Inc. Marina Park Site Plan Exhibit Professional Services Agreement with Rabben /Herman Design Office PROFESSIONAL SERVICES AGREEMENT WITH RABBEN /HERMAN DESIGN GROUP, INC. FOR THE MARINA PARK PROJECT THIS AGREEMENT is made and entered into as of this _ day of 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation( "City "), and Rabben/Herman Design Office LTD a California Corporation whose address is 833 Dover Drive, Suite 9, Newport Beach, CA 92663 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to re -use the existing Marina Park property to construct a Marina, Community Sailing and Community Center Buildings and Community Park C. City desires to engage Consultant to Act as the lead consultant for preparation of schematic design for park planning, architecture, marina and civil design services and provide support services for the Environmental Impact Report as outlined in R/Hdo Scope of Services referenced as Exhibit "A" for the Marina Park Project ( "Project').. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Project shall be Daniel W. Herman, Vice President, Rabben Herman Design Group. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30 day of June, 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A 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 Five Hundred Eighteen Thousand, Two Hundred Thirty Dollars and no /100 ($518,230.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Daniel Herman, Vice President to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis. as contemplated by this Agreement. 3 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Mark Reader shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City ■ to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attomey's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 5 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 and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Reguirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Q Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 7 iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the 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 Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings, and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be g transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its 10 investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's Violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Mark Reader, Project Engineer Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 981 -5260 Fax: 949 - 644 -3318 11 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Dan Herman Rabben Herman Design 833 Dover Drive, Suite 9 Newport Beach, CA 92663 Phone: 949 - 548 -3459 ext.22 Email: danh @rhdo.com 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, 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. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach,.of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 12 31. 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. 32. 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. 33. 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. 34. 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. 35. 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. 36. 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. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: 49%0-�— C , ff &�� City Attorney for the City of Newport Beach ATTEST: In LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Mayor for the City of Newport Beach RABBEN HERMAN DESIGN OFFICE LTD: In (Corporate Officer) Print Name: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scope of Services & Schedule of Billing Rates f:\ users \pbw\shared\agreements \fy 07- 081rabben herman- marina park.doc 14 EXHIBIT A Schematic Design Proposal Date: February 29, 2008 Revised March 4, 2008 Project: Marina Park Location: Newport Beach, CA Client: City of Newport Beach 3300 Newport Boulevard PO BOX 1768 Newport Beach, CA 92658 Contact: Mr. Dave Kiff, Assistant City Manager Tele: (949) 644-3002 FAX: (949) 644-3020 E -Mail: dkiff @city.newport - beach.ca.us Understanding and Approach: R/Hdo will manage a team assembled to provide Schematic Design services for the Marina Park project. The plan concept to be developed is the Marina Park Master Plan, as prepared by R/Hdo, dated October, 2007. The limits of work for the Schematic design effort would be expanded to include the contiguous beach and improvements north to 19th Street. In addition, the team will support an environmental consultant, retained separately by the City in the preparation of an E.I.R. and in the permitting process with the Califomia Coastal Commission, the C.O.E. and other environmental resource agencies as required. A summary of the services includes: Public Involvement Meet with Steering Committee on an ongoing basis throughout SD and environmental processing phase Meet with staff on a regular basis throughout SD and environmental processing phase Water Side Facility Studies 1. Prepare an ocean engineering report (wind/wave /sediment transport) to justify current layout, hydrodynamic loading on docks, and confirm extent of groin wall anticipated. Complete Schematic Design package for all proposed improvements Refine existing Master Plan and develop to a Schematic Design level. Reflect results of Traffic Study, Soil Testing, and additional client information and requests into design. 1. Overall Site Development Plan — Includes vehicular paving /entry and parking areas, pedestrian hardsrape — illustrating limits of pedestrian paving and proposed materials, children play areas — including dry and wet play areas, plans, sections and selection of equipment, beach improvements — including regrading and expansion of beach area, landscape planting — illustrating proposed trees and shrub massing, Site Lighting — fixture locations and catalogue cuts. Marina Park Proposal uwwnFr�x�caausyswcacwsuarovwniwnumsa+ wwaovosuuroannwvaxwuixwsie�auoeosra ++�vuooc Page 7 of 12 2. Overall Site Grading and Drainage Plan — illustrating proposed contours, bio- Swale, and drainage structures if required. 3. Building Plans — Community and Aquatic Center, restroomllighthouse, marina control building, and 19ih Street restroom. Includes plans and elevations. 4. Visiting Vessel Marina Plan — includes specific seawall recommendations, dock and ramp and other support fadlities, plan and sections. 5. City Sailing Docks and Water Side Facilities Plan — includes plan and sections. 6. Utility Plan — single line plan for water, sewer, gas and electric service. 7. Develop Schematic level estimates of probable construction cost. 8. Refine concept plans, if necessary, in consideration of report findings. Phasing and Funding Work with City staff to develop a funding source and project phasing plan. CEQA Documentation Provide support to City selected environmental consultant. Tasks could include attendance at scoping meetings, attendance at public meetings, providing materials and information related to design. Allow 100 hours. California Coastal Commission and Resource Agency Submittal Provide support to City selected environmental consultant. Tasks could include meetings with CCC staff to discuss the project. Providing application materials and backup, review application prior to submission, attend staff and public meetings. Allow 100 hours. Assumptions: The proposal is based on the following assumptions We will utilize the recently completed Master Plan and building footprints as a beginning point for the Schematic Design. Limits of the project will be expanded northward to include the contiguous beach and existing restroom at 190, Street. Current plans, prepared by the Harbor Commission for the existing docks at 15�1 Street and 19r^ Street will also be included to illustrate all proposed improvements with the expanded park area. This proposal does not include any design work for the two dock structures. Some revisions to the park Master Plan may occur as part of Task 2 Plan Refinement. Work related to the Girt Scout House and the American Legion facilities are not included in this scope of work. The intent is for the city's plans to provide graded pads and utilities to the Gid Scout House site. The work will begin in January 2008 and the Schematic Design and Coastal Commission applications will filed after the completion of the Enviromental Impact Report estimated to be completed by July 2009. Allowances have been made in this proposal to provide team support to the City retained environmental consultant responsible for Coastal Commission and environmental resource agency permitting. This work would be completed on an hourly time and material basis. The basic Schematic design services would be completed under a Lump Sum contract. Marina Park Proposal uuwmcrrcwaoww .meaovosnum,+uniuwnxwuvrrnroosa n, wmaruwnnurnaxwsranaovosx.rcnaox Page 2 of 12 SCHEDULE1 SCOPE OF WORK Task 1 Public Involvement A. Meet with Steering Committee on an ongoing basis throughout SD process. This task began With the January meeting, and is expected to lat for the duration of the Schematic Design effort. Anticipated Phase Duration: 8 months Anticipated Deliverables: Hand outs and or/Power Point presentation for each meeting. Task 2 Plan Refinement A. Work with the Marina Park Steering Committee to explore plan options and resolve issues as identified in the Public Meeting Process Anticipated Phase Duration: 8 Weeks Anticipated Base Scale: 1" = 20' Anticipated Sheet Size: NA Anticipated Deliverables: Study plans for specific park areas Revised Master Plan View Studies from homes along Newport Boulevard Task 3 Surveys and Utility Investigations A. Site Surveys 1. Using the existing site survey complete the hydrographic and topographic survey of the site, within the full extent of the waterfront limits and landside basin development. 2. Provide hydro /topographic surveys around existing, adjacent groin walls. 3. Survey manholes and existing utilities as required to prepare preliminary utility plans, and identify preliminary scope of demolition on site. Anticipated Phase Duration: 4 to 6 weeks for the survey, 12 to 16 Weeks to complete the phase Anticipated Base Scale: 1" = 20' Anticipated Sheet Size: 30" x 42" Anticipated Deliverables: Task 4 Schematic Refine the Master Plan to a schematic design level. Work will be completed for the entire 8+ acre site and all proposed City buildings and water side facilities. Marina Park Proposal '" uwT 'w°s+s°rsauw+uiruumuuurwi+oro%v. nxonuxwwxrarraewsresacrosuvuooc Page 3 of 12 A. KICK -OFF MEETING - meet with the project team in a workshop setting to determine the landscape "Big idea ", various site plan components, functional relationships and site user influences on the site design. Establish specific design criteria, preliminary landscape construction budget and schedule - assume one meeting. B. EXISTING TREE INVENTORY PLAN. - prepare an Existing Tree Inventory Plan, which documents all salvageable trees. The plan will locate and describe each worthwhile tree, . identifying it with a number and noting its height, spread, caliper and special comments. C. SCHEMATIC HARDSCAPE PLAN - prepare a schematic landscape plan which addresses the design and layout of the parking areas, pedestrian walks, a plaza areas associated with the Sailing and Community Center buildings. D. SCHEMATIC LANDSCAPE PLAN - prepare a Schematic Landscape Plan which addresses some of the following key issues: E. DETAILS AND ENLARGEMENTS - prepare Details and Enlargement which describe the site design. ELEVATIONS AND SECTIONS - prepare Elevations and Sections that support the Schematic Plan. G. DESIGN IMAGERY - prepare Design Imagery consisting of color laser copies of built design imagery that show landscape character that may be similar to that proposed for this project. H. SCHEMATIC SITE LIGHTING PLAN - prepare a Schematic Site Lighting Plan which addresses site lighting issues for the project such as accent, safety, parking, landscape, and fountain lighting. SCHEMATIC FINE GRADING AND DRAINAGE PLAN - prepare a Schematic Fine Grading and Drainage Plan addressing proposed landscape area grading and drainage issues for the project. SCHEMATIC SITE DEMOLITION PLAN — Prepare Schematic Site Demolition Plan identifying general extent and major elements of demolition work. K. PRELIMINARY WATER QUALITY MANAGEMENT PLAN — Prepare Preliminary Water Quality document to reflect current preliminary design and to address latest SWQRCB requirements. Included discussion and calculations to support Low Impact Development site features. Report prepared will suitable for the CEQA process and is not intended to include final details of BMPs. L. SCHEMATIC ARCHITECTURAL BUILDING PLANS — prepare schematic level architectural plans for the Community and Sailing Centers, the restroom/light house, the marina control building and the existing restroom building located at 19th Street.. Marina Park Proposal •xrnnanxomorrosoimr aimwsusasamiwnu+xsouwwnaeosea nxosr�,aesra+anmosa.ntvuaoc Page 4 of 12 Based on approved conceptual design criteria for the Community and Sailing Center buildings and any new information presented by client or due to additional research of governing agency regulations or design guidelines, the Architect shall refine the building program and adjust current building plans, elevations, and 3 -d images to reflect and further current ideas including implementation of agreed upon phasing plan. 2. Prepare plans, elevations, showing heights of major building components, door and window locations and proposed materials and colors for onsite buildings, including the support structures as described above. Establish a plan for sustainable solution objectives with the building and site. 3. Coordinate with other team members to incorporate building designs into master site plan as it pertains to landscape and hardscape design around each structure. 4. Initiate technical code research to further define buildings' occupancy classification, type of construction, including allowable area and exiting analysis. 5. Provide sketches describing basic structural building systems for each building. 6. Assist the client in securing schematic refined building construction estimates. Update 3 -d imagery in models. s. 19th Street restroom renovation feasibility studies — perform research on existing condition, past uses and community demand in order to develop alternatives for renovation or replacement of the existing restroomistorage building M. SCHEMATIC DESIGN of WATER SIDE FACILITIES - Prepare Harbor and Marina Master Planning schemes with various alternative layouts that provide the Owner with long and short range plans for the proposed basin. Alternative plans may include layouts with single -wide and double wide configurations, if desired, as well as the incorporation of long docks, side and end lies and other special configurations as needed. Special marina components may be required based on dock operations. Special components may include tendering apparatus, gangways and platforms for vessel boarding, special power requirements, sewage pump -out facilities and other amenities. 2. Coastal Engineering Analysis. Provide a study and report of the coastal processes associated with the site, to include wind and wave studies, sediment transport and littoral drift evaluations, wave study, water circulation within the marina, water quality modeling and imposed loads study. Additional study may be required once the initial studies are complete. These additional studies, if required, will occur in subsequent phases of the project, unless the City of Newport Beach increases the Marina Park Proposal Page 5 of 12 funding and revise the schedule to allow the studies to be completed in this phase of the project. 3. Seawall Assessment: Based on recommendations by the soils consultant (working under direct contract with the Owner), prepare seawall concepts that incorporate Coastal Engineering recommendations. Identify cross section of wall and depth of pilings for inclusion in the EIR. Wall shall be designed to meet minimum City of Newport Beach requirements, as well as seismic stability guidelines. 4. Dredging Documents and Quantity Take -offs: Based on agency requirements for the permit process, prepare preliminary dredging documents with associated material takeoffs to be used for permitting and dredge disposal evaluations. Discuss the dredging matrix with the sediment testing firm (working under direct contract with the Owner), Dredging takeoffs will assume a 1 -foot over - dredge limit. 5. Gangways — Standard marina gangway products will be incorporated in the various marina layout schemes. Special foundations may be required for gangway support, based on gangway location and the nature of the soils report. ADA compliance requirements will be followed for boater paths of travel. If special architecture is desired of the gangway structure, this would be considered an Additional Service. 6. Sewage Pump -out Facilities — The sewage pump -out facility will be located on the docks and the appropriate support facilities planned. Transient docks are often used for a pump -out location or, individual pump -out stations can be placed near each dock, in lieu of a common transient location, if desired. Grant and/or matching funds are available to a marina developer if such facilities are planned for the basin. N. UTILITY PLANS — Perform research to supplement existing utility information and direct additional site survey information as required. Prepare single line schematic utility plans depicting water, sewer, fire lines and storm drain (if required). Location of proposed gas and electrical lines will be shown for reference only with final locations dependent on the local provider. 0. REVISIONS - based upon comments derived from the presentations to the Client, perform minor revisions to the schematic design package, if required, to obtain final Client approval. P. COORDINATION WITH CEQA CONSULTANT — met with City retained CEQA consultant to conform schedules and data needs, provide data developed in Schematic design effort and review CEQA document for accuracy. Q. STATEMENT OF PROBABLE CONSTRUCTION COSTS - prepare a Statement of Probable Construction Costs based upon the schematic design. Marina Park Proposal uvw+¢n,wvnwosusm rRovozv .soswuawarracanumavnmosat ums�s�nmacosu.atriaooc Page 6 of 12 R. FINAL ILLUSTRATIVE PLAN - prepare a colored Illustrative Plan useful for presentation purposes. S. FINAL PRESENTATION - present the final landscape schematic design package to the City of Newport Beach. CLIENT SUBMITTAL - submit the final schematic landscape design package to the Client. Anticipated Phase Duration: 16 Weeks Anticipated Base Scale: 1" = 20' Anticipated Sheet Size: 30" x 42" Anticipated Deliverables: • Schematic Plan alternatives (colored, freehand on tissue) • Elevations and Sections (colored, freehand on tissue) • Details and Enlargements • Final Illustrative Plan (colored, freehand on print) • Existing Tree Inventory Plan • Design Imagery (color copies) • Schematic Site Lighting Plan • Schematic Fine Grading and Drainage Plan • Restroom feasibility/design study • Single line Utillty Plans • Dimensioned floor plans and schematic exterior elevations/sections as necessary to describe the proposed design solution, including description of proposed buildings' exterior color and material selections, formatted to coordinate with overall submittal. • Sketches and /or a narrative description of the proposed structure system for each building. • Sketches and /or narrative outlining concepts of sustainability characteristics • Outline specification of proposed construction materials • Colored 3 -d images updated to reflect adjustments to the buildings. Including updated site photograph overlaid with proposed structures (two views max.) • View Analysis showing current and proposed views from the public right of way to clarify impacts for EIR. • Statement of Probable Construction Costs Task 5 Phasinq and Fundi A. Work with City staff to identify State and Federal programs, grants and other sources that could be utilized to obtain funding for the construction of the Marina Park improvements. Marina Park Proposal rxvwixer�xu�nwosn .m+movosrv.smxvmxmausvaannnaosx um n��rmwmw•Hixuna�amovtrennoa Page 7 of 12 B. Work with City staff to identify a level of City funds that could be used for construction of Marina Park improvements. C. Work with City staff to develop a Phasing Plan for park improvements. Plan to be developed in graphic and tabular form. Anticipated Phase Duration: 4 to 10 Weeks Anticipated Base Scale: 1" = 20' Anticipated Sheet Size: NA Anticipated Deliverables: Funding Source document Phasing Plan Task 6. Meeting Attendance A. Eight team coordination meetings are anticipated, including a start-up meeting with the City and regular coordination meetings with City Staff, the environmental consultant, and other consultants that may be retained separately by the City. B. Attendance at three (3) City hearings. This is expected to include the March 11th Council meeting. If requested, R/Hdo can attend additional meetings and/or hearings on a time and materials basis. C. Attendance at three (3) Homeowner Association Meetings. Task 7. California Coastal Commission Permitting (to be completed on an hourly basis) A. Project team will meet with the City, Environmental Consultant, and other Consultants who may be retained by the City, to identify the information necessary to prepare a project application, and supply information and documents as needed to complete the process in a timely manner. Task 8. Resource Agency Permits (to be completed on an hourly basis) A. Project team will meet with the City staff, Environmental Consultant, and other Consultants who may be retained by the City, to identify the information necessary to prepare a project application, and supply information and documents as needed to complete the process in a timely manner. Marina Park Proposal Page 8 of 12 SCHEDULE2 ADDITIONAL SERVICES Services in addition to RIHdo's Schedule 1 (Scope of Work) when requested shall be identified as such and billed at the current billing rate schedule. Additional services shall include, but are not limited to the following: A. Items that the Client deems are RIHdo's responsibility indicated in Schedule 3 (Proposal Exclusions). B. GRAPHIC EXHIBITS - graphic exhibits required beyond those indicated in each phase of Schedule 1 (Scope of Work). C. PHASED OR SEGMENTED WORK - services requested in a phased or segregated bid basis. RIHdo assumes that this project will be designed and construction documents prepared in one contiguous effort. D. FEES - Payment for governmental permits, application fees, processing fees, and plan check fees. E. EXCESS MEETINGS - meetings in excess of those indicated in each phase of Schedule 1 (Scope of Work). SPECIAL RENDERINGS - professional renderings often required to portray the landscape design in a more highly articulated or rendered fashion than is usually customary. Marina park Proposal wwurcenxvmavwamanmawaaosrnwaxnwaxsvxwwacrosxnwsrueuwwHwnnrwsrownmosxx�v >wooc Page 9 of 12 SCHEDULE3 FEE SCHEDULE We will perform the Scope of Work as described for the following fees, net of all local taxes, duties and levies, plus reimbursable expenses. Hourly Services Task 7 California Coastal $20,000(1) Commission Task 8 Resource Agency Permits $20,000(l) 40 00 (1)Fees to be used for entire team in support of California Coastal Commission and resource agency approvals. Funds identified are an initial estimate and not a guarantee of the amount of funds /support required. Marina Park Proposal u, rvTwrm�osnm�Arvvosimswurrramuwmovovin�si�rwuurusuawsie�anpnse rcvn,00c Page 10 of 12 Primar Subcontractors Work Phase R/Hdo Basic Services - to be completed on a Lump Sum basis Task 1 Public Involvement $8,000 Task 2 Plan Refinement $7,000 Task 3 Surveys $15,000 Task 4 Schematic Design $66,000 $144,000 $88,800 $29,000 $5,700 Task 5 Phasing and Funding $8,500 Task 6 Meetings $13,500 $10,000 $11,800 $10,000 Sub -total 5103.000 $154,000 00 �600 554.000 700 Sub -total Lump Sum Fees $417,300 Administrative Costs $30,930 Total Lump Sum Fee $448,230 Reimbursable Expenses 22&0 Not to exceed Total Not to Exceed $478,230 Schematic Design Hourly Services Task 7 California Coastal $20,000(1) Commission Task 8 Resource Agency Permits $20,000(l) 40 00 (1)Fees to be used for entire team in support of California Coastal Commission and resource agency approvals. Funds identified are an initial estimate and not a guarantee of the amount of funds /support required. Marina Park Proposal u, rvTwrm�osnm�Arvvosimswurrramuwmovovin�si�rwuurusuawsie�anpnse rcvn,00c Page 10 of 12 D(HIBIT B SCHEDULE 4 R/Hdo's Standard Hourly Rate Schedule Effective January 1, 2008 SCHEDULE OF FEES For Professional Services Time Charges Hourly Rate Range NOR Principals $190.00 Senior Associates $125.00 Associates $85.00 Professional Staff $65.00 Administrative & Word Processing $55.00 URS /Cash See attached Bundy - Finkel Architects Principal $150.00 Senior Designer $125.00 Project Manager $105.00 Draftsperson $85.00 Clerical $45.00 Fuscoe Engineering $135.00 President $260.00 Principal $229.00 Senior Project Manager $218.00 Project Manager $177.00 Senior Designer /Senior Engineer /Senior Water Resources Engineer $151.00 Designer/ Engineer/ Project Scientist/GIS Coordinator $135.00 CADD/Engineering/Envlronmental Tech. /Graphics Tech. $104.00 information Coordinator $78:00 1 Man Survey Crew $170.00 2 Man Survey Crew $225.00 3 Man Survey Crew $260.00 Butsko Utility Design Principal in Charge $135.00 Project Manager $110.00 Project Coordinator $80.00 Designer $95.00 AutoCAD Drafter $65.00 ouriy ra e s 'ect to ad'ustme Marina Park Proposal �aasusar rwwromimosrwawunnw,sowureaavosu nw sn�rruwawruau+srvsamosuartvewooc Page 11 of 12 Reimbursable Expenses Consultants: Cost plus 10 %. Travel: Private vehicles @ $0.485 per mile. Commercial travel and related expenses at cost plus 10 %. Taxes: Any tax and/or fees imposed by a taxing authority based upon gross revenues or sales shall be reimbursable in addition to the fee stated in this contract. Other project expenses: Cost plus 10 %. Such as: Printing, graphics, photography and reproduction, rental or purchase of special equipment and materials, long distance telephone, telex, fax, special shipping or delivery, models and renderings, lodging and subsistence. Marina Park Proposal MIM'JIRTINC£RCPoSPt30] % IWOS iISYb) 1WNIYPNIX£ GHVRFRCPoSN. pHD51LRNWdIYPNIXIMS fEPPFGPoSFLAEYNWC Page 12 of 12 URS Cash & Assmiares RATE SCHEDULE FOR ENGINEERING SERVICES ON A TIME AND MATERIAL BASIS January 1, 2008 In addition, for direct oul-cf- pocket expenses (if and when they occur) we quote the following: 1) In- (louse Repro: Blueprint $.10 to $1.50 per square fool -depending on type of paper Plotting $.80 to $2.00 per square foot -depending on type of paper 2) Automobile: Standard Mileage Rate set by IRS 3) Travel Expense: at Cost 4) Subsistence : Away from home office more than one day: at Cost, not to exceed $150.00/day /per man. 5) Plan Check and Building Permit Fees: at Cost plus 15% mark -up. 6) Third Party Services: at Cost plus 15% mark -up. a) Surveying b) Materials testing laboratory work G) Consultant and subcontract professional fees d) Outside reproduction services un er is encmg y ays. URS Corporation 5772 Bolsa Avenue. Suite 100 Huntington Beach. CA 92649 Tel 714.895.2072 Fax: 714.895.1291 Mail: P.O. Box 2715 Huntington Beach, CA 92647 HOURLY OVERTIME PROJECT DIRECTOR 237.00 237.00 TERMINAL PLANNING SPECIALIST 237.00 237.00 SR. PROJECT MANAGER 225.00 225.00 PROJECT MANAGER 170.00 170.00 PRINCIPAL ENGINEER 167.00 167.00 SENIOR ENGINEER/PROJECT ENGINEER 157.00 157.00 PROJECT ARCHITECT 142.00 142.00 ARCHITECT 111.00 111.00 ENGINEER III 142.00 142.00 ENGINEER II 122.00 122.00 ENGINEER 1 111.00 111.00 GRADUATE ENGINEER 96.00 96.00 PROJECT DESIGNER 111 109.00 130.80 PROJECT DESIGNER 11 104.00 124.80 PROJECT DESIGNER 1 96.00 115.20 SENIOR DESIGNER/CAD OPERATOR 111 92.00 110.40 DESIGNER/CAD OPERATOR 11 81.00 97.20 DRAFTER/CAD OPERATOR 1 71.00 85.20 PERMIT PROCESSOR/COORDINATOR 87.00 104.40 PROJECT ADMINISTRATOR 81.00 97.20 SR. PROJECT ASSISTANT 86.00 103.20 PROJECT ASSISTANT 81.00 97.20 SPECIFICATION PROCESSING 81.00 97.20 WORDPROCESSOR 76.00 91.20 CLERICAL 66.00 79.20 In addition, for direct oul-cf- pocket expenses (if and when they occur) we quote the following: 1) In- (louse Repro: Blueprint $.10 to $1.50 per square fool -depending on type of paper Plotting $.80 to $2.00 per square foot -depending on type of paper 2) Automobile: Standard Mileage Rate set by IRS 3) Travel Expense: at Cost 4) Subsistence : Away from home office more than one day: at Cost, not to exceed $150.00/day /per man. 5) Plan Check and Building Permit Fees: at Cost plus 15% mark -up. 6) Third Party Services: at Cost plus 15% mark -up. a) Surveying b) Materials testing laboratory work G) Consultant and subcontract professional fees d) Outside reproduction services un er is encmg y ays. URS Corporation 5772 Bolsa Avenue. Suite 100 Huntington Beach. CA 92649 Tel 714.895.2072 Fax: 714.895.1291 Mail: P.O. Box 2715 Huntington Beach, CA 92647 Professional Services Agreement with Michael Brandman Associates PROFESSIONAL SERVICES AGREEMENT WITH MICHAEL BRANDMAN ASSOCIATES (MBA) FOR THE MARINA PARK PROJECT THIS AGREEMENT is made and entered into as of this day of 200_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and MICHAEL BRANDMAN ASSOCIATES a California Corporation whose address is 220 Commerce, Suite 200, Irvine, California, 92602 ( "Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to re -use the existing Marina Park property to construct a Marina, Community Sailing and Community Center Buildings and Community Park C. City desires to engage Consultant to Act as the lead consultant for preparation of the EIR and provide project management services for the various technical consultants outlined in MBA Scope of Services referenced as Exhibit "A" for the Marina Park Project (`Project "). D. Consultant possesses the skill, experience, ability, background, certification, and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Project, shall be Michael E. Houlihan, AICP, Manager of Environmental Services F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31st day of June, 2010, unless terminated earlier as set forth herein. City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in, a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control.. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A 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 Ninety Five Thousand, One Hundred Eighty Seven Dollars and no /100 ($195,187) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be 2 limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work' means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Michael E. Houlihan, AICP, Manager of Environmental Services to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Planning Department. Rosalinh Ung, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized 3 representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above.. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. N 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of. conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 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. 5 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 and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non- renewal of all Workers' Compensation policies must be received by City at least N thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 7 iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the 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. N 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant. shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes. made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 244nch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings, and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 9 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to .Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 10 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Rosalinh Ung and /or Mark Reader Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3208 Fax: 949 -644 -3229 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: 12 Attn: Michael E. Houlihan Michael Brandman Assoicates 200 Commerce, Suite 200 Irvine, CA 92602 Phone: 714 - 508 -4100 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, 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. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. 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. 12 32. 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. 33. 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. 34. 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. 35. 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. 36. 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. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: ,A , c- ff,,,, City Attorney for the City of Newport Beach ATTEST: 0 LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Mayor for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Print Name: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scone of Services and schedule of Billing Rates flusersNpbwlshared\agreements%fy 07 -08\bmndman- arina park.doc 14 March 7. 2008 To verify our ability to produce high - quality work in a highly condensed project schedule while providing client service, MBA refers you to the Marinapark Resort & Community Plan EIR prepared in 2004. MBA worked closely with Mr. David Lepo and Ms. Sharon Wood. Our previous work on the project site will allow MBA to focus on the issues cost - effectively. The Scope of Work, Fee, and Schedule for the Marina Park Master Plan is in Attachment A and is based on information provide to MBA by the City during phone conversations with City staff, our meeting on February 22, 2008, and our intimate knowledge of the project site from the preparation of the Marinapark Resort & Community Plan EIR in 2004. We have highlighted some of our other strengths for this effort. • MBA understands the importance of contracting with an environmental firm that has a solid background and understanding of the CEQA Guidelines. For 20 years, MBA has been providing defensible environmental documents to the public and private sector clients. Many of them were prepared for the local cities and agencies. • With approximately 110 professionals on staff company -wide, MBA's depth and breadth of personnel available can serve as a valuable technical and staff resource to this project. We have a full- service graphics division, word processing center, reproduction department, and additional support staff to assist management and technical staff with documentation needs. MBA is committed to maintaining the necessary financial, technical, and staff resources for this Magma project. ENV IRONMEN1 Al. SERVICES • PLANNING • NA IUltAL RESOURCES MANAGEMENT www.brandmanxom Is 661.334.2755 Ms. Rosalinh Ung City of Newport Beach Planning Department Fremo 3300 Newport Boulevard 559.497.0310 P.O. Box 1768 Irvine Newport Beach, CA 92658 -8915 714.508.41011 Subject: Revised Proposal to Prepare an Environmental Impact Report for the Palm Spnngz 760.3228847 Marina Park Master Plan Saceamenm 916.447.11 W Dear Ms Ung: San Bemm&no 909.894.2255 Preparing defensible, technically precise, and objective environmental documents is a challenging task; however, there are many consulting firms that are able to prepare such San R.. documents. What is even more challenging is the consultant's ability to provide excellent 925.8302733 service to each client, as dictated by the client's specific needs and expectations. It is this ability — provision of high quality work products in conjunction with outstanding client service —which sets Michael Brandman Associates (MBA) apart. MBA believes that client service is the foundation from which high - quality work is produced. To verify our ability to produce high - quality work in a highly condensed project schedule while providing client service, MBA refers you to the Marinapark Resort & Community Plan EIR prepared in 2004. MBA worked closely with Mr. David Lepo and Ms. Sharon Wood. Our previous work on the project site will allow MBA to focus on the issues cost - effectively. The Scope of Work, Fee, and Schedule for the Marina Park Master Plan is in Attachment A and is based on information provide to MBA by the City during phone conversations with City staff, our meeting on February 22, 2008, and our intimate knowledge of the project site from the preparation of the Marinapark Resort & Community Plan EIR in 2004. We have highlighted some of our other strengths for this effort. • MBA understands the importance of contracting with an environmental firm that has a solid background and understanding of the CEQA Guidelines. For 20 years, MBA has been providing defensible environmental documents to the public and private sector clients. Many of them were prepared for the local cities and agencies. • With approximately 110 professionals on staff company -wide, MBA's depth and breadth of personnel available can serve as a valuable technical and staff resource to this project. We have a full- service graphics division, word processing center, reproduction department, and additional support staff to assist management and technical staff with documentation needs. MBA is committed to maintaining the necessary financial, technical, and staff resources for this Magma project. ENV IRONMEN1 Al. SERVICES • PLANNING • NA IUltAL RESOURCES MANAGEMENT www.brandmanxom Is Ms. Rosalinh Ung March 7, 2008 Page 2 To assure timely project completion, Mr. Michael E. Houlihan, AICP, Manager of Environmental Services at MBA will be responsible for the day - to-day project management. Mr. Houlihan's has over 20 years experience providing environmental planning services. He has been involved in numerous projects where strong oral communication and presentation skills have also been key to a successful outcome. MBA has the resources to assemble a project team that can provide a wide4ange of high - quality technical work products that comply with environmental regulations and agency requirements. An experienced team has been assembled, including MBA's in -house environmental specialists, Austin -Foust Associates, Inc. (Traffic), and Coastal Resources Management (Marine Resources). Specifically, MBA is prepared to take responsibility for project initiation and organization, preparation of draft CEQA notices, data compilation, impact assessments, development of mitigation measures, report compilation and distribution, response to public comments, preparation of the mitigation monitoring program, findings /overriding considerations, public meetings and hearing attendance, and coordination with City.of Newport Beach staff. As requested by City staff, MBA is a "C Corporation" and our Dunn and Bradstreet business number is 068163203. We are confident that the approach outline in the Scope of Work in Attachment A will meet the objectives of the City of Newport Beach. If you have any questions regarding the attached qualifications, please do not hesitate to contact the undersigned at 714.508.4100. Thank you for your consideration of MBA as a qualified consultant for this project. Sincerely, Michael E. Houlihan, AICP, Manager of Environmental Services Michael Brandman Associates 220 Commerce, Suite 200 Irvine, CA 92602 Enc: Attachment A: Scope of Work, Fees and Schedule H: \Giem (PWNAW64 %0664o022P\06640022P Marina Park Cope, Lb 034708.9.c MEKJj i City of Newpod Beach — Marina Park Master Alan EIR Attachment A: Scope of Work Feet and Schedule SCOPE OF WORK MBA recognizes the impottance of coordination and communication in the EIR process for a proposed project of this significance. The scope of work and fees outlined in this proposal takes into account coordination and communication with the following key players in the project: • City of Newport Beach • City's Technical Consultants (i.e., Rabben /Herman, Cash and Associates, Newfields, Tetta Costa, and Fuscoe Engineering) • MBA Project Team (i.e., traffic, marine tesources, air quality, noise, etc.) More importantly, MBA is committed to being a working partner with City staff. MBA is prepared to take responsibility for project initiation and organization, preparation and processing of CEQA notices, data compilation, impact assessment, development of mitigation measures, report compilation and distribution, response to public comments, public meetings and hearing attendance, coordination with City staff and City's technical consultants, and the MBA Project Team, preparation of the findings of fact, preparation of the statement of overriding considerations (f required), and preparation of a mitigation monitoring plan (to the extent presented in the following scope of work). Report format and content will be in full compliance with CEQA, the Stare CEQA Guidelines, and City of Newport Beach environmental guidelines. The EIR organization will include a description of the environmental setting, identification of thresholds of significance, project and cumulative impacts, mitigation measures, and level of significance after mitigation. Text will be supplemented with graphics and summary tables, as necessary, to present information in a concise and easily understood format. Work products will consist of professionally photocopied reports in comb bindings, unless other specific approaches ate proposed. The proposed scope of work that follows has been organized into major tasks. Refinements to the scope of work, budget, and project schedule will be discussed during the initial task, if needed. This scope of work outline identifies the major tasks and project related delivetables associated with the EIR. The cost for preparation of the EIR is broken into the following tasks. Task 1. Project Definition and Organization The purpose of this task is to obtain the information necessary to prepare a complete "proposed project" and "alternatives" descriptions. It includes crafting measurable project objectives. In order to establish early communication among various project team members, consisting of City staff, City technical consultants, and MBA, and to establish project expectations with respect to policy concerns for the project, MBA will use the following approach: • Attend initial orientation meeting with City staff, City's technical consultants, and the MBA Project Manager to determine which elements will be included in descriptions of the project and alternatives to the proposed project. • Receive complete project information, which will be used to develop the EIR project and alternatives descriptions. Information will include project objectives, narrative program description, etc. • Receive all existing reference and research materials related to the project, the project site, and the vicinity, including base maps and aerial photographs. • Review reference material provided by the project team. Expand and refine the list of information needs. Distribute, as appropriate, to EIR Project team members. H: \Cllenr (PN -)N) \0664 \06640022P \IX /640022 Marina Park Proposal rev 03 -07- 08.doc 1 Scope of Work City of Neopori Beach — Manna Park Master Plan EIR Attachment A. Sage of Wlark, Fees and Schedule Task 2. Project Management, General Coordination and Meetings The purpose of this task is to manage the EIR preparation effort and to maintain close communication between City staff, City's technical consultants, and the MBA project team members. This task is also intended to ensure that the project is running on time and within budget and technically correct. This is a key element to the project because of the necessity to maintain clear lines of communication between the MBA project team, the City, and the City's technical consultants. The following approach will be used: 1. Communicate with the MBA project team members and City staff for compliance with the scope of work, schedule and budget. Coordinate the teams work and provide management liaison between the project team, the City, and the City's technical consultants for communication issues, transmittal of comments, financial management (e.g., invoices) and other project management matters. 2. Attend project coordination meetings with City staff. The proposed scope of work and budget proposal includes three project meetings attended by MBA's EIR Project Manager. Other meetings _ or additional MBA staff may attend on a time- and - materials basis. Task 3. Initial Study and Notice of Preparation MBA will prepare the IS, according to CEQA requirements, the state CEQA Guidelines (Section 15063), and the CEQA compliance procedures of the City of Newport Beach. The IS will comply with the content requirements of case law, specifically Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) and Sundstrom v. County of Mendocino (1988), wherein both a checklist of impacts and reasoned explanations of the findings of the study were determined to be necessary for a legally adequate IS. After completion of the initial meeting and receipt of the Notice of Preparation (NOP) responses, MBA will identify issues for which no significant impacts will occur (to be described as effects found not to be significant in the EIR) and potentially significant impact topics identified in the Initial Study (IS) that require further evaluation in the EIR. This will verify and precisely define the scope of EIR issues, provide a strategic action plan for completing the environmental process as efficiently as possible, and determine the most effective approach for addressing the consultations and approvals needed by other agencies. A draft IS will be prepared for review by the City of Newport Beach. Following receipt of staff comments, MBA will prepare the final IS. MBA will prepare the NOP. The NOP will include the appropriate City form, a project description, project exhibits, and the final IS, which includes the IS checklist and a discussion of environmental issues. MBA will submit one unbound copy of the NOP to the City for approval, and then will reproduce and distribute up to 50 copies of the NOP via certified mail to agencies and to the public. The distribution list will be provided by the City, with input from MBA. MBA anticipates that the distribution list will be similar to the list that was used during the Marinapark Resort & Community Plan project. Task 4. CEQA Adequacy Review of Technical Reports The MBA team will review the technical reports that will be prepared by the City's technical consultants for CEQA adequacy. The reports that will be reviewed include the sediment chemistry by Newfields, geotechnical hazards by Terra Costa, and the hydrographic survey, drainage, and preliminary water quality evaluations by Fuscoe Engineering, Inc. These reports will not be reviewed for technical accuracy. Additional technical reports including traffic by Austin -Foust Associates, Inc. and marine biology by Coastal Resource Management, Inc that will be prepared for MBA will also be reviewed for CEQA adequacy. H: \Client (PN -JN) \11664 \066400221' \006401122 Marina Puk Proposal rev 03- 07- 08.dor 2 Scope of Work City of Newport Beacb — Marina Park Matter Plan EIR Attacbment A Scope of Work, Fees and Scbeduk Task 5. Administrative Draft EIR The purpose of this task is to prepare a comprehensive EIR for the City. The following approach will be used: 1. Prepare the project description section of the EIR, including: regional and local setting, project history, project objectives, and project characteristics. The project description should also identify all discretionary actions required by the City of Newport Beach, and state, regional and federal resource agencies with responsibilities over aspects of the project. 2. MBA shall prepare a narrative on the intended uses of the EIR, as required by Section 15124(d) of the State CEQA Guidelines, including, but not limited to a list of responsible and other agencies expected to use the EIR in decision - making. 3. Identify reasonable anticipated actions /related projects likely to occur that may result in cumulative impacts when combined with the proposed project. These potential projects will be identified by the City and will be considered by the MBA team throughout the cumulative impact evaluation. 4. Document baseline conditions and establish thresholds of significance (in coordination with the City of Newport Beach). Identify Effects Found Not to be Significant, in accordance with Section 15128 of the State CEQA Guidelines, with brief explanations, conduct impact evaluations, and formulate mitigation measures. MBA anticipates that the following environmental issues will result in no significant impacts: • Agricultural Resources • Mineral Resources • Population and Housing • Recreation Specific topical areas to be addressed on a project- specific and cumulative basis in the EIR are as follows Geology and Soils The potential for impacts from soil or geological conditions onsite or in the project vicinity will be evaluated for the construction of the project. This section will emphasize geotechnical hazards, seismicity of the area, potential for liquefaction and subsidence, and erosion. The analysis will be based on a technical report that is assumed to be prepared by Terra Costa, the City's technical consultant, and adequate for CEQA purposes upon its receipt. Appropriate mitigation measures will be recommended, if necessary. This report will be summarized in the EIR and included in its entirety as an appendix to the document. Biological Resources Coastal Resources Management (CRM) will provide marine resources assessment for the proposed project. The project's potential to impact marine resources is the primary biological evaluation. To provide a comprehensive biological resources evaluation, MBA will prepare the terrestrial biological resources assessment for the project. However, the terrestrial evaluation is expected to be more brief than the marine resources assessment. Marine Resources Assessment The purpose of the marine resources assessment is to evaluate the potential short- and -long term effects of the project development on the marine life and marine habitats of Newport Bay from implementation of the proposed project. Issue areas will be addressed in the assessment: H: \Client (PN -JN) \0664 \06640(122P \(X1640022 Manna Park Pcopoaal rev 07- 07 -08dm 3 Srope of Work City of Newport Beach — Marina Park Master Plan EIA Attachment A: Scope of Work, Fees and Schedule • Existing marine habitats and biological communities within or nearby the project area; • Sensitive, rare, threatened, or endangered species within or nearby the project area; • Effects of additional pollutants due to increased runoff caused by the project; 4 Potential changes in biological productivity caused beach recreational activity and structures, wet weather and dry weather runoff, or decrease in light entering the water due to shadowing (new buildings); • Construction /operational effects of the marina basin on the marine environment The following identifies the tasks to be completed as part of the marine resources assessment 1. Conduct a marine biological field survey. CRM will conduct a field survey at the proposed development site. This survey will be conducted to gain an understanding of the existing site conditions, the locations of existing storm drains, and the general types of marne flora and fauna (including marina birds) within the project area. Photographs of the project site will be taken and included in the project report. Underwater video will also be taken. An underwater survey will be conducted to document the presence or absence of eelgrass (Zostera marina), which is an important invertebrate and fish nursery habitat. 2. Prepare a draft Marine Biological Resources Assessment. CRM will conduct a review of the available marine biological data for the local area to be used as background and historical information. Based upon the results of the reconnaissance survey at the project site, the available data base of historical information, and project design plans, storm water runoff plans, and other project documents, CRM will analyze potential project impacts on the marine biological resources. Potential environmental impacts of the project on marine resources (marine plants, invertebrates, fishes, marine mammals, seabirds, federally and state -listed marine - associated species, sensitive habitats) will be evaluated. Where significant impacts have been identified, mitigation measures to reduce the level of impact to less- than - significant will be provided. This marine resources assessment will be summarized in the FIR and provided in its entirety as an appendix to the document Terrestrial Biological Resources Assessment In addition to the marine resources assessment, MBA will prepare a terrestrial biological resources assessment of the project site. The assessment will be limited to the non -beach portion of the project site. MBA will conduct a literature search and field reconnaissance to determine the existing biological conditions on the non -beach portion of the site. MBA will conduct an impact evaluation and provide mitigation measures, if necessary. Cultural Resources MBA will perform an archaeological and historical evaluation of the project area following NEPA and CEQA guidelines. The technical evaluation will be used to support the FIR, however, the report could be ultimately used during the future NEPA processing of the Section 10 of the Rivers and Harbors Act permit which is required for the dredging associated with the proposed marina. Due to the future review, the existing mobile home units that are.more than 45 years old will likely be required to be evaluated at the national (NEPA), state and local (CEQA) significance levels. It is anticipated that the mobile home park would not be identified as a potentially significant cultural resource. However, should the existing mobile home park be identified as a potentially significant cultural H: \Uimt (pN- JN) \(W64 \06640022P\U)"JU72 Manna Park Proposal rcv 03- 07-08.doc 4 Scope of Work City o%Nemport Beacb — Marina Park Master Plan EIR Attacbment A: Scope of Work, Fees and Scbedmk resource during the survey, you will be notified, and MBA will perform a historic evaluation as an option task in this proposal. The final report will require an evaluation of the project area for potential impacts to buried cultural deposits. Mitigation measures will. be developed that will be incorporated into the EIR that, if necessary, provide for mitigation monitoring. Lastly, the project area will be evaluated for paleontological sensitivity. Should the project area be found to lie within a paleontologically sensitive area, paleontological mitigation measures will be developed that can be incorporated into the EIR. Transportation /Circulation Austin Foust Associates (AFA) will prepare a traffic and puking study for the proposed project. AFA will use the traffic information that they previously developed with the Marinapark Resort & Community Plan project. The project traffic study will involve an estimation of the net new trips generated by the project considering a credit will be applied for the existing uses and the relocation of the mobile homes. Once the net increase in trips is known (and approved by City review), a trip distribution and assignment and capacity analysis will be conducted. This analysis will basically follow the City's own Traffic Phasing Ordinance (TPO) guidelines in identification and evaluation of any impacts and potential mitigation. The analysis will be carried out for both off - season and peak summer season conditions. In addition to the traffic impacts, the site access and internal circulation system will be reviewed for both traffic flow and safety with appropriate comment furnished where noted. The parking study will consist of preparation of an estimate of the parking demand created by the project itself, although it is recognized the ambient puking conditions vary significantly between the normal and peak summer seasons. AFA will rely heavily on industry parking standards to forecast the park's total parking demand. This analysis will also evaluate the potential for use of the parking facilities by non -users and develop a means to control any such "poaching" into the park's parking facilities. The study will examine the parking in both the view of the City's own puking code as well as industry standards. The traffic and parking study will be summarized in the EIR and provided in its entirety as an appendix to the document. Land Use and Planning Existing land uses in the vicinity of the project will be identified and validated by a field visit and photo reconnaissance. An existing land use map, and General Plan and Zoning Map will be presented in the EIR. The EIR will evaluate the proposed land uses in relation to the City General Plan (all Elements), the proposed zone change, regional (e.g., SCAG and SCAQMD) and state (i.e., California Coastal Act) plans and policies for the site (i.e., State Tidelands) and surrounding area compatibility with surrounding uses, and consistency with relevant plans and policies, and loss /relocation of existing mobile homes will be addressed. Cumulative land use effects will be considered within the context of adopted plans and other past, present and probable future projects. Density, interrelationship of uses, and environmental impacts will be addressed from a land use impact perspective. Measures will be recommended to reduce or eliminate adverse land use effects. Air Quality A comprehensive air quality analysis will be prepared in support of CEQA and will include an evaluation of both localized and regional short -term and long -term air quality impacts. The air quality analysis would judge the significance of those impacts by comparing to South Coast Air Quality Management District (SCAQMD) localized and regional significance thresholds. In accordance with the CEQA guidelines, the analysis would answer the following questions: H: \(;Bent (PN JN) \0664 \06640022P \00640022 Manna Park Proposal rev 03- 0749.doc 5 Smpe of Work City of Newport Bt ch — Marina Park Master Plan EIR Atlacbment A: S e o f Wade Fees and Stbedu/e • Is the project consistent with the 2007 Air Quality Management Plan? • Would the project violate any air quality standard or contribute substantially to an existing or projected air quality violation? • Would the project tesult in a cumulatively considerable impact? • Would the project expose sensitive receptors to substantial pollutant concenttations? • Would the project create objectionable odors? To answer these questions, the air quality analysis requires the following tasks Emissions Calculation Air pollutant emissions associated with construction and opetational activities will be estimated using URBEMIS2007 and /or emission factors published by the United States Envitonmental Protection Agency (U.S. EPA) to accurately depict the construction and operational activities. The pollutants that will be estimated include the following: volatile organic compounds, oxides of nitrogen, carbon monoxide, sulfur dioxide, and particulate matter (PM10 and P142.5). A CO mictoscale hot -spot analysis for up to two intersections will be petformed based on the traffic study tesults. Mitigation measures will be determined, if necessary, to reduce the level of significance of the air emissions to below the SCAQMD regional significance thresholds. Emissions prior to and after mitigation measures will be estimated. Localized Significance Threshold (LST) Analysis. Thete ate two methods available for assessing localized impacts from a project from construction putsuant to SCAQMD methodology. The first method assumes that no mote than five acres pet day would be disturbed during grading. This method estimates onsite project emissions of carbon monoxide, nitrogen dioxide, and particulate matter (PMIO and PM2.5) and compares them with localized thresholds as obtained from the SCAQMD LST Methodology look -up tables for the project's source receptor area. The second method is estimating concentrations of the pollutants at nearby sensitive receptors and is appropriate for projects that anticipate disturbing mote than five acres pet day. The concentrations ate estimated using the U.S. EPA Industrial Source Complex (ISC3) model and ate compared with the LST for the source receptor area. The majority of the project site is expected to be graded after the construction of the marina. At this time, since the total acteage of the area to be graded (minus the marina) is unknown, the second method will be used to estimate concentrations at the nearby sensitive receptors during construction activities. Greenhouse Gases. There are currently no published thresholds of significance established by any state or regional regulatory agency for measuring the impact of a project's greenhouse gas emissions to climate change. CEQA Guidelines Section 15064.7 indicates, "each public agency is encouraged to develop and publish thresholds of significance that the agency uses in the determination of the significance of environmental effects." Therefote, the threshold to be used in assessing project impacts will be as follows. Greenhouse gas emissions created by the project ate considered to be potentially significant if the project would tesult in an increase in greenhouse gas emissions that would significantly hinder or delay California's ability to meet the reduction targets contained in AB 32. Background information on greenhouse gases and the regulatory environment will be described. Project generated direct and indirect emissions of greenhouse gases will he estimated. The Genetal Plan or other regional planning document(s) will be reviewed for goals or policies that relate to climate change. Mitigation measures will be recommended and a significance finding will be determined. Noise MBA will prepare a noise evaluation based on the ptevious noise study prepared for the Nlarinapadk Resort & Community Plan project. Noise measurements were taken as part of the previous study and will be used to describe existing noise levels and traffic mix in the project vicinity. Community noise standards relevant to this project ate contained in the City Noise Element and Noise Otdinance. These standards will be summarized and there relevance to the project discussed. H: \Client ( PN- )N) \/W64 \066MX122P \191641N22 Manna Pak Proposal rev 03- 07- 08.dtx 6 Smpe of Work G'ty of Neaport Beach — Manna Park Matter Plan EIR Attachment A: Scope of Work, Fees and Schedule The potential noise impacts can be divided into short -term construction noise, impacts on surrounding land uses, and on -site noise /land use compatibility. The application of the City's Noise Ordinance to control construction noise will be discussed. The noise impacts associated with the project's traffic on adjacent land uses will be assessed in terms of the CNEL noise scale for the without project and with project conditions. Areas that will experience a significant noise increase will be identified. The absolute noise levels experienced in these areas will then be determined, and the resulting land use /noise compatibility discussed. Noise levels generated by stationary sources (e.g. parking lots) will also be assessed for compatibility with the proposed land uses. Noise levels from stationary sources that potentially impact noise sensitive land uses will be estimated. The City's Noise Ordinance standards will be used to assess impacts. Based upon the cumulative baseline, the cumulative noise impacts in the area including mobile as well as any stationary sources of noise, will be assessed. Mitigation for construction and /or operational impacts will be identified, as necessary. Residual impact, if any, would be compared with the impact criteria to assess adequacy of any proposed mitigation measures. Drainage and Water Quality. The City's technical consultant, Fuscoe Engineering, Inc., is preparing the drainage and water quality evaluation for the proposed project. Site drainage and surface water quality characteristics of the site and receiving waters are assumed to be identified. Requirements of the Regional Water Quality Control Board and compliance with NPDES are also assumed to be addressed. Water quality issues are expected to be preliminarily addressed by Fuscoe. The qualitative water quality issues that are assumed to be addressed include the following. • Shore based construction activities that could locally degrade water quality through an increase in water turbidity, trash and debris, during runoff events or during dry weather from storm drain flow into Newport Bay; Water quality impacts associated with the construction of the marina. These impacts would result from pile driving and /or hydrojetting dock support pilings into the seafloor, as well as dredging (including maintenance dredging) associated with increasing water depths underneath the proposed boat dock Impacts could potentially include a local increase in water turbidity and resuspension of sediment contaminants; Potential effects of long -term water impacts associated with runoff from the proposed park into Newport Bay. These impacts would be associated with wet weather and dry weather runoff. It is anticipated that all flows would be directed inland and away from the bay. The conformity of the project to current local, state, and federal water quality regulations are assumed to be discussed and evaluated. The integration of BMPs with project design will be discussed. Mitigation measures for water quality impacts will be recommended. The drainage and water quality evaluation provided by Fuscoe will be summarized in the EIR and provided in its entirety as an appendix to the document. Hazards /Hazardous Materials. Newftelds will conduct an analysis of the marine soil that will be excavated to determine the chemistry of the sod as well as the suitability for use as beach replenishment onsite and /or offske. If there are environmental concerns regarding the soil, MBA anticipates that Newftelds will provide recommendations to reduce potential significant impacts. MBA will incorporate the findings and conclusions within the EIR. In addition, Petra Geotechnical, Inc. prepared a Limited Phase II Sod Assessment along the beach portion of the site as part of the Marinapark Resort & Community Plan Project. These findings will be incorporated into the EIR. Furthermore, MBA will conduct a hazardous materials records review, site observation, and conduct interviews with City officials that are familiar with the present and historical uses of the H: \Client (PN -JN) \(1664 \(16640022P \(N)64(9)22 Manna Park Proposal re, 03407 -W.doc 7 .Scope of Work City of Newport Beach — Manna Park Master Plan EIA AttarlimentA Smile of Work, Fee and Sdxdale site. Subsequently, MBA will summarize the finding of the hazardous materials review and recommend measures to reduce potential significant impacts, if necessary. Visual Character. Views of the project site will be depicted through a photo - reconnaissance. Massing of the proposed structures and visual simulations of the proposed structures are assumed to be provided by Rabben /Herman based on our discussions with City staff. The potential glare impacts from construction and operation of the proposed project will also be qualitatively evaluated. The alteration of the visual setting and sensitivity of viewpoints will also be discussed. Mitigation measures will be recommended, if necessary, to reduce any significant impacts. Public Services and Utilities. MBA will coordinate with City staff and affected public services and utility purveyors to assess the potential impacts of the proposed project. It is anticipated that at least the following services and utility systems will be analyzed Fire Protection; Police Protection; Water; Sewer; Electricity; Natural Gas; and Solid Waste. Letters will be sent to all service facility, and utility agencies describing the proposed project. Answers will be requested, as appropriate, to document existing and planned facilities, current usage, excess capacity, and needed improvements. The additional capacity required to meet projected needs will be described. Anticipated impacts will be assessed and appropriate mitigation measures will be recommended. Additional EIR tasks include the following 1. Discuss all significant unavoidable adverse impacts, in conformance with the State CEQA Guidelines, Section 15126(6). Included in the discussion will be any impacts that can be partially mitigated, but not to a level that is less than significant. 2 Include growth- inducing and cumulative impact evaluations in the EIR. To the extent possible, the analysis will address known projects, either approved or proposed in the vicinity of the project. The boundaries of this area will be determined by the City and will be set prior to commencement of the Administrative Draft EIR. The cumulative impact assessment will be based on adopted plans and /or past, present and probable future projects that may, in combination with the proposed project, create adverse envitonmental impacts. 3. Prepare an Executive Summary, presenting the significant conclusions of the EIR for the project, in a manner that is easily understood by the public. A "summary table" format will be used to identify the significant impacts and the effectiveness of the recommended mitigation measures. A discussion of issues to be resolved and issues subject to potential controversy, as required by CEQA, will be provided. A summary of the alternatives and effects found not to be significant would also be presented. 4. Prepare the Alternatives Section of the EIR based upon directives from City staff. MBA will work closely with the project team to define the alternatives. MBA will address the following alternatives to the proposed project: the No Project Altemative —site remains in its current developed condition, pursuant to current General Plan and zoning, and up to two alternative designs. The alternatives will be analyzed in sufficient detail for comparison with the proposed project. Each alternative will be evaluated with respect to each key impact category reviewed for the proposed project. 5. MBA will also prepare othex sections of the EIR, including CEQA- mandated topics as follows • Table of Contents; • Significant Irreversible Environmental Changes; • Relationship Between Short -Term Uses & Long -term Productivity; • Effects Found Not to Be Significant; • List of Organizations and Persons Consulted; • Preparers of the Environmental Document; H: \(]rent (PN-J M \0664 \06641M /22P \4XYA*22 Marina Park Proposal rev 113- 07 -U&d« 8 Smpe of Work 00 of Newport Beaeb — Manna Park Master Plan EIR Attasbment A: Swpe of Work, Feet and Sebeduk • References; and • Appendices. 6. Prepare up to eight (8) copies of the Adminsittative Draft EIR for review by City staff and designated recipients. The appendices will be placed on cd. Task 6. Proof Check Draft EIR and Draft EIR The purpose of this task is to respond to staff comments on. the Administrative Draft EIR, complete necessary revisions, and publish and distribute the Draft EIR for public teview. The following approach will be used: 1. Coordinate with the City's EIR Project Manager who will assemble comments on, and suggested revisions to, the Administrative Draft EIR. One set of unified comments will be provided to MBA. 2. Prepare up to five (5) copies of the Proof Check Draft EIR for submittal to the City's EIR Project Manager and designated recipients for final "proof- check" review before distribution to the public. The appendices will be placed on cd. 3. Following the City's proof check review of the Proof Check Draft EIR, MBA will make any additional minor revisions required and distribute up to 60 copies of the Draft EIR with a cd containing the appendices to recipients on the approved Distribution List, including the fifteen (15) copies required by the State Clearinghouse. Five hard copies of the entire appendices will be provided to the City so that it can be available for public review at the City and the libraries within the City. Task 7. Draft and Final Responses to Draft EIR Comments The purpose of this task is to prepare written responses to comments received on the Draft EIR that raise significant environmental issues, and submit them for the City's review after the close of the public comment period. The responses to comments will be prepared based on the requirements of the State and City CEQA requirements. The following approach will be used: 1. The City's EIR Project Manager will compile and transmit to MBA all written comments on the Draft EIR. 2. MBA will confer with staff to review written comments on the Draft EIR and comments from public meetings and hearings to develop a general ftamewotk and strategies for preparing responses. 3. MBA will submit up to five (5) copies of the Draft Response to Comments for City staff review. Based on staff review and suggested modifications, the responses will be finalized and three (3) copies and one unbound, photo-teady copy of the Final Response to Comment will be submitted to the City. The responses will include a separate section identifying any Changes to the Draft EIR. Responses that ate within this proposal scope of work and budget proposal consist of explanations, elaboration, or clarifications of the data contained in the Draft EIR corrections, with a budgeted effort of up to 60 hours for management and technical staff in the task. If substantial new analysis, issues, alternatives, or project changes need to be addressed, or if effort exceeds the budget amount because of the number or complexity of responses, a contact amendment may be requested. This task also assumes that the City's technical consultants who prepared studies for the EIR would be responsible in drafting responses to comments that pettain to their specific issue area (i.e., drainage /water quality, geologic resources, etc.) Task 8. Findings and Facts in Support of Findings and Statement of Overriding Considerations The purpose of this task is to prepare statutory requirements for actions certifying the EIR, pursuant to Section 15091 of the State CEQA Guidelines (Section 21081 of the CEQA Statutes) and to Section 15093 of the State CEQA Guidelines. The following approach will be used: H:Wk.t(PN -JN) W64 \66640022P \1g640022 Marina Park Proposal rev U3- 07 -US.dm 9 SNpe of Work Cuy ofNempod Beatb — Manna Park Ma ter Plan EIR Attacbraexl A: S of Work, Frer and Srbedxle 1. MBA will prepare Draft Findings and Facts in Support of Findings for each potential significant effect identified in the EIR and prepare a Statement of Overriding Considerations for the unavoidable significant impacts associated with the project. As required by the State CEQA Guidelines, one of three findings must be made for each significant effect and must be supported by substantial evidence in the record. The Statement of Overriding Considerations will rely on consultation with the City regarding the potential benefits of the project. MBA will submit one complete set via a -mail and , reproducible hard copy of the Draft Findings of Fact and Statement of Overriding Considerations to the City's EIR Project Manager for review. 2. MBA's project manager will consult with City staff to review draft findings and overriding considerations (if needed) to finalize them. MBA will submit one complete set via e-mail and reproducible hard copy of the Final Findings of Fact and the Statement of Overriding Considerations to the City's EIR Project Manager. Task 9. Final EIR MBA will reproduce and submit to the City twenty-five (25) copies of the Final EIR consisting of the Draft EIR with appendices on cd and the final version of the Response to Comments. MBA will also copy and distribute the Response to Comments document to each public agency that commented on the Draft EIR in accordance with Section 21092.5(a) of the CEQA statutes. Task 10. Mitigation Monitoring and Reporting Plan The purpose of this task is to comply with Public Resources Code Section 21081.6 as mandated by Assembly Bill 3180 (Cortese 1988), by preparing a Mitigation Monitoring and Reporting Plan (MMRP) for adoption at the time of the CEQA findings. MBA will use the following approach: 1. MBA will prepare and submit a Draft MMRP in accordance with the State and City CEQA requirements. The MMRP will he designed to ensure compliance with the mitigation measures that address significant impacts. 2. After City staff review and comment, MBA will finalize the MMRP and submit the required number of copies. Task 1L Public Meetings and Hearings The purpose of this task is to be present at public meetings and hearings, to develop an understanding of the public's comments and concerns, to be available to answer questions on environmental issues, and to make presentations on the EIR. The MBA Project Manager and Traffic Consultant will attend up to four public meetings or hearings to conduct presentations regarding the EIR process and findings (and traffic study), and be available to answer questions. The following public meetings/ hearings included are EQAC (1); Planning Commission (2); and City Council (1). In. addition, MBA will prepare for and attend one scoping meeting after the distribution of the Notice of Preparation. MBA will be available to present the project, the environmental issues that have are initially identified for evaluation in the EIR, and discuss the general schedule of the EIR process. Task 12. CEQA Notices In addition to the NOP, MBA will prepare the Notice of Completion and Notice of Availability to accompany the Draft EIR distribution. It is assumed that the City will file the Notice of Determination, and distribute public meeting and hearing notices. H: \CGem (PN -)N) \0664 \W4oti22P \glWltt122 Marina Park PmpwW rev 11}U7.U8.doc 10 Smpe of Vork City of Nemp, t Beach — Marina Park Master Plan EIR. Attachment A: Scope of Work, Fees and Sehedule PROJECT FEES Estimated fees for preparation of the EIR for the Marina Park Master Plan Project are shown below. MBA PROFESSIONAL FEES Task 1. Project Definition and Organization $ 2,700 Task 2. Project Management and Meetings 15,940 Task 3. Initial Study and Notice of Preparation 6,090 Task 4. CEQA Adequacy Review of Technical Reports 3,440 Task 5. Administrative Draft EIR 66,060 Task 6. Proof Check Draft and Draft EIR 12,310 Task 7. Draft and Final Responses to Draft EIR Comments 15,680 Task 8. Findings and Facts in Support of Findings and Statement of Overriding Considerations 5,780 Task 9. Final EIR 2,440 Task 10. Mitigation Monitoring and Reporting Plan 2,140 Task 11. Public Meetings and Hearings 9,120 Task 12. CEQA Notices 940 Total MBA Professional Fees '$ 142.640 Austin Foust Associates (Traffic) 19,400 Coastal Resources Management (Marine Resources) 15,800 (Administrative Fee of 10 Percent) 3520 Total Subconsultant Fees 8 38,720 Direct Cost Document Printing /Reprographics $ 10,770 Phone /fax, postage /delivery, mileage 1,800 (Administrative Fee of 10 Percent) 1.257 Total Direct Costs $113 827 TOTAL FEE Ii:MCtien, (PN.JN) \0664 \06640022P \UU64U1122 Marina Park Proposal rev 113- 07.08AM 11 Fees City of Newpott Beach — Marina Park Marten Plan EIR Attachment A: Scope of Work, Fees and Schednk FEE ASSUMPTIONS In determining MBA's fees for the proposed scope of work, the following assumptions are made: 1. The identified EIR fees are based on the preceding scope of work. Should additional technical studies be required pursuant to EIR scoping or agency comments, a contract amendment may be required. 2. Printing costs are based on the method of printing and binding proposed, specific numbers of copies proposed as work products, and estimated page lengths. Document printing costs are estimated and will need to be finalized at the time of printing (ADEIR w /appendices on cd - $70; DEIR w /.appendices on cd - $70, DEIR and .Appendices - $250, Response to Comments -$3M, Final EIR -$ 100). 3. The EIR scope may need to be adjusted after receipt of all NOP comments. 4. The EIR will be prepared to comply with CEQA. 5. This price is based on completion of the work within the proposed schedule. If substantial delays occur, an amendment of the price may be warranted to accommodate additional project management and other costs, and to reflect adjustment for updated billing rates. 6. Costs have been allocated to tasks based on MBA's proposed approach. During the work, MBA may, on its sole authority, reallocate costs among tasks, as circumstances warrant, so long as the adjustments maintain the total price within its authorized amount- BILLING RATES Following are the billing rates of the MBA project team for the Marina Park Master Plan EIR. Michael Brandman Associates Project Manager $ 180 QA /QC $ 220 Assistant Project Manager $ 110 Environmental Planner $ 90 Environmental Analyst $ 80 Noise Specialist $ 145 Air Quality Specialist $ 130 Biologist $ 100 Water Quality Specialist $ 145 Cultural Resources Specialist $ 130 Word Processor $ 85' GraphcTechnician /GIS $ 110 Editing $ 115 Clerical $ 80 Coastal Resources Management, Inc. Senior Marine Biologist $ 125 Bird Biologist $ 85 Marine Biologist $ 75 Word Processor $ 55 Austin -Foust Associates, Inc. Principal Traffic Engineer $ 180 Transportation Engineer $ 135 Technical /Clerical $ 80 H: \C Lent (PN.JN) \0664 \(M640U22P \ /NW4UU22 Muina Park Proposal rev 0- 07 -08Aoo 12 Feel City oof Neugon Beach — Manna Park Matter Plan EIR Attachment A: Scope afWork, Fees and Schedule SCHEDULE Projects are considered successful when they are completed on time and within budget. MBA places a strong emphasis on integrating schedule and budget issues into a cohesive and successful plan that will result in the completion of a high- quality work product. Project objectives, or milestones, need to be identified at the onset of the project through an active exchange of goals and realistic objectives between MBA and the City of Newport Beach. Once these milestones have been determined, dates are established for the execution of each objective. A preliminary schedule for the EIR is identified below. Milestone Tentative Schedule fWe Sign contract /Kick -off Meeting 1 Draft NOP and Initial Study Due 4 Receipt of Geotechnical Report from City's Consultant 5 Receipt of Sediment Chemistry from City's Consultant 6 City Review final N.O.P. and Initial Study 6 Consultant Sends N.O.P. and Initial Stud (City to provide mailing list 8 Receipt of Preliminary Marina Design from City's Consultant 12 Receipt of Drainage and Water Quality Evaluation from City's Consultant 14 Administrative Draft EIR Due 22 City Comments Due 25 Proof Check Draft EIR Due 28 City Comments Due 30 Draft EIR Due 32 Review Period Starts 45 days) 32 E AC Study Session 36 Review Period Ends 38 Response to Comments and Findings Due 42 City Comments Due 44 Final Response to Comments Due 46 Planning Commission Hearing #1 49 Planning Commission Hearing #2 53 Final Findings Due 55 City Council Hearin 57-61 Final EIR 62 H: \Client (PN -JN) \0664 \06640022P \W640022 Marina Nark Proposal rev 03- 07 -00.d. 13 Schedule Professional Services Agreement with Terra Costa Consulting Group PROFESSIONAL SERVICES AGREEMENT WITH TERRACOAST CONSULTING GROUP INC. FOR THE MARINA PARK PROJECT THIS AGREEMENT is made and entered into as of this _ day of 2008 by and between the CITY OF . NEWPORT BEACH, a Municipal Corporation( "City "), and TERRACOSTA CONSULTING GROUP, INC. a California Corporation whose address is 4455 Murphy Canyon Road, Suite 100, San Diego, CA 92123 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to re -use the existing Marina Park property to construct a Marina, Community Sailing and Community Center Buildings and Community Park C. City desires to engage Consultant to provide Geotechnical Investigations and Reports to provide needed technical data for the Environmental Impact Report and to provide the basis for engineeringg of the proposed building structures, Marina facilities, and restroom at 19 street, pavement and flatwork referenced as Exhibit "A" for the Marina Park Project ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Project shall be Braven R. Smillie, Principal Geologist, TerraCosta Consulting Group. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30 day of June, 2009, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Thirty Three Thousand, Five Hundred Ten Dollars and no /100 ($33,510.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed 'and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any 2 reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Braven Smillie, Principal Geologist, to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new. or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of. services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. r 6. ADMINISTRATION This, Agreement will be administered by the Public Works Department. Mark Reader shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with Clty. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work I promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 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. 5 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 and/or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in. accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least Q thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 7 iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers_ v. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, . its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise 0 assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project.. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days.after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. VJ 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant. shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow. inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 10 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be bome by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Mark Reader Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 981 -5260 Fax: 949 - 644 -3318 11 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attn: Braven R. Smillie, Principal Geologist TerraCosta Consulting Group, Inc. 4455 Murphy Canyon Road, Suite 100 San Diego, Ca 92123 -4379 Phone: 858- 573 -6900 Fax: 838 - 573 -8900 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, 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. Notwithstanding the above provisions, City shall have the right, at its sole, discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination,, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 12 31. 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. 32. 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 govem. 33. 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. 34. 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. 35. 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. 36. 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. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM �11 C, — Assistant City Attorney for the City of Newport Beach ATTEST: 0 LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A.Municipal Corporation in Mayor for the City of Newport Beach TERRACOSTA CONSULTING GROUP, INC. By: (Corporate Officer) Title: Print (Financial Officer) Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates f:lusers\pbMshared \agreements \fy 07-08 \terra costa psa.doc 14 Proposal No. 08018 March 3, 2008 GeowWol Engineering Caasml EngMn v Mr. Mark S. Reader, P.E. Marinme Engineering Public Works Department CITY OF NEWPORT BEACH 3300 Newport Boulevard Newport Beach, California 92663 PROPOSAL FOR GEOTECHNICAL INVESTIGATION MARINA PARK PROJECT NEWPORT BEACH, CALIFORNIA Dear Mr. Reader: TerraCosta Consulting Group, Inc. (TCG) is pleased to submit this proposal to perform a geotechnical investigation for development of the Marina Park project, located on Newport Harbor between 15th and 18th Streets, and north of West Balboa Boulevard, in the City of Newport Beach, California. BACKGROUND INFORMATION For input in preparing this proposal, we have discussed the project with you, with Mr. Tim Bundy, AIA, of Bundy - Finkel Architects, Inc., and with Mr. Randy Mason of URS /Cash, Inc. We have also reviewed preliminary site plans describing the locations of proposed structures, pavements, and flatwork, as well as the proposed "offshore" dock facilities. Additionally, we have reviewed our in -house files and pertinent on -line reference sites to obtain available geotechnical and bathymetric data in the project site area. As we understand, the principal structures proposed are: • A 10,190- square -foot, two -story, steel - framed community center building; An 11,000- square -foot, two -story, steel -framed sailing center building (potentially including a W- foot -tall steel moment -frame tower); 4455 Murphy Canyon Road, Suite 100 • San Diego, California 92123 -4379 ♦ (858) 573 -6900 voice ► (858) 573- 8900.1ux 2601 Ocean Park Boulevard, Suite 110 ♦ Santa Monica, California 90405 • (310) 3994190 mice ♦ (310) 399 -8195 /ax. www.terracosta.com EXHIBIT A Mr. Mark S. Reader, P.E. CITY OF NEWPORT BEACH Proposal No. 08018 March 3, 2008 Page 2 • Two small single -story restroom structures (one of which is located approximately a block away from the site on a separate property); An 800 - square-foot, single -story marine services building; Ancillary concrete flatwork and paved parking areas designed to support all of the above structures; and Offshore facilities, including 28 floating -dock boat slips, flexi -float support docks, approach piers, a groin -wall, and bulkheads located in an area which must be dredged to accommodate the new facilities. SCOPE OF WORK Our investigation is designed to address the following geotechnical issues: On -Shore Facilities The geologic/geotechnical setting of the site; Potential geologic hazards, such as faulting and seismicity; General engineering characteristics of the identified soil and geologic units, including on -site allowable soil - bearing and earth pressure values; Settlement estimates; • The depth to groundwater; • Building foundation and flatwork recommendations; Building setbacks for any foundation impacts from adjacent and nearby structures, if applicable; • Grading and earthwork recommendations; and oicG srnvrxv��w��w.vnoa�naois roi cro orN�,�cewa�.aa Mr. Mark S. Reader, P.E. March 3, 2008 CITY OF NEWPORT BEACH Page 3 Proposal No. 08018 Soil corrosion potential. Offshore Facilities (Proposed ADA Apriroach Piers Floating Docks Groin -Wall, and Bulkhead Walls) • Geotechnical recommendations for dredging; Geotechnical design input for the proposed groin -wall; Recommendations for the lateral support of the dock -area bulkheads, including both earth -anchor and tieback/deadman approaches; Geotechnical recommendations for approach -pier foundations, including both pile - supported and spread footing alternatives; and • Depth and load/deflection criteria for use in guide pile design. Based on our present understanding of the project and our recent site -area reconnaissance, we propose to drill a total of eight to ten test borings and/or CPT probes at the site (both onshore and offshore) to depths ranging from 5 to 40t feet, or to drill refusal, depending upon the geotechnical conditions encountered. This task includes working with Underground Service Alert to identify possible locations of buried utilities, and obtaining the required test boring permits from the Orange County Department of Environmental Health (DEH). If hazardous materials or contaminants should be encountered in a test boring, we will stop drilling operations, contain the drill spoils, seal the boring in accordance with DEH standards, and notify your office. Our proposal assumes we will be provided access to the existing private docks for the drilling of test borings, as well as access to the exterior "yard" areas of residential properties for drilling of test borings in the area to be dredged We understand that bay floor bathymetry is currently being surveyed by a member of the City's consulting team and that the resulting bathymetric mapping will be provided to us for use in study. In order to properly characterize bay floor surface sediments (critical \NTCC SERVERVawmBWmpmek\tW8'MIGM[Ciry MNewpo Beach Mr. Mark S. Reader, P.E. March 3, 2008 CITY OF NEWPORT BEACH Page 4 Proposal No. 08018 elements in guide pile design), we will conduct hand - probing from a small aluminum boat across the area planned for new floating docks. A geologist from our office will log the test borings and CPT probes and obtain soil samples, as required, for visual classification and laboratory testing. Laboratory tests will be performed on representative soil samples to aid in soil characterization and geotechnical design. After completing our laboratory testing and engineering analyses, we will prepare a geotechnical report presenting field and laboratory data, geotechnical conclusions, and our recommendations for grading and construction. For assistance with chemical and biological testing of proposed dredge soils and for assistance with the permitting of dredging and disposal of dredged soils, we recommend Merkel & Associates, Inc. (contact Mr. Lawrence Honma - tel: 858 -560- 5465, email: Ihonma(a�merkelinc.com). If requested, we would be happy to obtain a proposal from Merkel & Associates and include them under our contract. SCHEDULE We will be prepared to start our work upon receipt of your notice to proceed (NTP). We anticipate that locating utilities, obtaining test boring permits, scheduling drill rigs, and drilling and sampling activities will be completed within approximately four weeks of NTP; geotechnical and analytical testing will be completed within two weeks of field work completion; our geotechnical and environmental report can be submitted within two weeks following laboratory testing, or about six to seven weeks after NTP, allowing for some overlap of these tasks. CONDITIONS OF SERVICE We propose to perform our service _and invoice in accordance with the attached Conditions O0 of Service (Exhibit A), and i4W Fee Schedule (Exhibit 13) on a time - and - materials basis. A breakdown of our estimated charges is presented on Table 1. Any consulting services k%TM SF VMcwwkTop IsQISG O I SKI GW of N�n9odi.doc Mr. Mark S. Reader, P.E. March 3, 2008 CITY OF NEWPORT BEACH Page 5 Proposal No. 08018 requested after submittal cLf our report will be provided on a time -and- materials basis at the rates specified in our 20JFee Schedule (Exhibit B). We appreciate the opportunity to submit this proposal and look forward to working with you on this project. If the above terms and conditions meet with your approval, please sign in the space provided below and return a signed copy to our office. Your signature will serve as our authorization to proceed, and your acknowledgement of your understanding of Us proposal and of the attached Conditions of Service and 2007 Fee Schedule. Please retain a copy for your records. If you have any questions or require additional information, please give us a call. Very truly yours, TERRACOSTA CONSULTING GROUP, INC. Z d! "�— Braven R Smillie, I'Mcipal Geologist C.E.G. 207, P.G. 402 BRS /sr Attachments The undersigned, being duly authorized, hereby accepts and specifically agrees to be bound by the above document and the exhibits attached hereto, and authorizes TerraCosta Consulting Group, Inc. to undertake the items of work described in the above document. AGREED TO THIS DAY OF 2007 Mr. Mark S. Reader, P.E. Public Works Department CITY OF NEWPORT BEACH, 3300 Newport Boulevard Newport Beach, California 92663 SIGNATURE NAME TITLE \ \TCG SF ]iVEltYwiwmk\Poposah\Z008W801B PoI Ciry of Ncwpan eoAJOc Pmposal No. 08018 TABLE 1 ESTDAATE OF FEES GEOTECHNICAL INVESTIGATION MARINA PARK PROJECT NEWPORT BEACH, CALIFORNIA March 3, 2008 1 Prin Assoc Prof. Tech I Agency ,Subcontract) Eng/Geo : Eng /Geo TASKS $185/hr $170/hr Eng/Geo $155 /hr Sr. Tech ' $100/hr Designer $100/hr Support $75 /hr TOTAL LABOR Permit Drilling & i Subcontract) Fees Probing 1 Lab Testing I TOTAL UTILITY LOCATION / PERMITTING 1 16 4 4 $3,180 $2030 L ! $5.210 2 TEST BORMG FROM EXISTING PRIVATE DOCKS_ (6 -8) TEST BORINGS FROM LAND SIDE ti -- 16 16� 16 $2,480 $4,080 $3,250 $5,730 _ $5,060 1 _ $9 140 8 8 $2040 OFFSHORE PROBING (GUIDE PILE DESIGN)_ .. --I— -- - $250 I �. ._ . - ]--..$2,290 -- LABORATORY TESTING 2 2 $540 J $1[5001 $2040 4 $4 080 ANALYSES; 4 16 ._.. ... . -... ....... .. -... _ _— REPORT PREPARATION 2. 101 j $4 080 - ,.. _... ! $5,02.0 10� 8 8 $5 020 TOTAL I30'4IR5 6i 2'8 ., z '777 1 . � , $2•U$0� 58-560 $1500 $33,510 T6TA#,' NOTES: ' This estimate does not include any assistance with permitting. For assistance with chemical and biological testing of proposed dredge soils and for assistance with permitting for the dredging and disposal of soils, we recommend Merkel & Associates, Inc. (contact Mr. Lawrence Honma - tel: 858 - 560 - 5465, email: Ihonina@merkelinc.com). Our proposal assumes we will be provided access to the existing private docks for the drilling of test borings, as well as access to the exterior "yard" areas of residential properties for drilling of test borings in areas proposed for dredging. This estimate also includes an additional CPT probe at a site, approximately a block from the Marina Park project, where a small restroom building is proposed. Geotechnical services requested following the delivery of our report will be charged at the rates listed above. EXHIBIT B -2M7 FEE SCHEDULE 204 HOURLY CHARGES FOR PERSONNEL PRINCIPAL ENGINEERIGEOLOGIST ASSOCIATE ENGINEER/GEOLOGIST SENIOR ENGINEERIGEOLOGIST PROJECT ENGINEERIGEOLOGIST STAFF ENGINEERIGEOLOGIST SENIOR TECHNICIAN/PREVAILING WAGE TECHNICIAN SENIOR DESIGNER DESIGNER TECHNICAL SUPPORT OUTSIDE SERVICES Outside services will be charged at cost plus 15 percent OVERTIME $ 185.00 170.00 160.00 155.00 125.00 100.00 . 85.00 130.00 100.00 75.00 Technician and support personnel time for work over eight (8) hours per day will be charged at 1.25 times the regular rates. Holiday and weekend hours (all hours) will be charged at 1.50 times the regular rates. LITIGATION FEES Fees for participation in deposition, arbitration, trial, etc., will be charged at a rate of $350.00 per hour, 4 -hour minimum, portal to portal. Amendment No. 2 to Professional Services Agreement with Gable Engineering, Inc. AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT WITH GABLE ENGINEERING, INC. FOR CAPITAL IMPROVEMENT PROJECT MANAGEMENT SERVICES THIS AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT, entered into this_ day of 2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City") and GABLE ENGINEERING INC., a California Corporation, whose address is 1048 Irvine Avenue #441, Newport Beach, California, 92660 ( "Consultant'), is made with reference to the following: RECITALS A. On February 13, 2007, City and Consultant entered into a Professional Services Agreement, hereinafter referred to as the "Agreement," for capital improvement project management services. B. On August 13, 2007, City and Consultant entered into an Amendment No. 1, hereinafter referred to as "Amendment No. 1", for additional project management services. C. The Amendment's term is due to expire on June 30, 2008. D. City desires to have Consultant provide additional project management services in connection with the preparation of schematic design, Environmental Impact Report, and geotechnical investigation for the Marina Park project. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to compensate Consultant for additional professional services needed for City under the terms and conditions set forth in this Agreement. F. City and Consultant mutually desire to amend Agreement, hereinafter referred to as "Amendment No. 2 ", as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Consultant shall provide the services outlined in the March 12, 2008 Letter from Consultant attached hereto as "Exhibit A" and incorporated in full by this reference. 2. Total additional compensation for services performed pursuant to this Amendment No. 2 for all work performed, including all reimbursable items and subconsultant fees, shall not exceed Eighty Six Thousand Four Hundred Dollars ($86,400.00). Consultant shall be paid on a time and materials basis at a billing rate of $100 per hour, as outlined in Exhibit A. 3. The term of the Agreement shall be extended to December 31, 2009. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and eff ect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 on the date first above written. APPROVED AS TO FORM: C f Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk Attachment: Exhibit A —Letter Proposal CITY OF NEWPORT BEACH, A Municipal Corporation In Edward Selich, Mayor for the City of Newport Beach GABLE ENGINEERING INC L-on Mark S. Reader, P.E. f: lusers�pbwlsharedlagreements\ty 07- 08Veader-gable- amendment -2.doc KA GABLE ENGINEERING INC. 392 Ramona Way Costa Mesa, CA 92627 mreader@city.newport-beach.ca.us Phone: 949- 981 -5260 March 12, 2008 Mr. Steve Badum City of Newport Beach Public Works Dept. 3300 Newport Blvd. Newport Beach, California RE: Marina Park Project To whom it may concern: This letter is to certify that on March 11, 2008 1 was requested to estimate a management fee for the Marina Park Project. At this time several professional service contracts are going before council on March 25". This includes schematic design services to be provided by Rabben /Herman Design Office and its subconsultant team, Michael Brandman Associates for preparation of the EIR, TerraCosta Consulting Group Inc to provide soils investigation and a yet to be named consultant for sediment sampling and analysis. According to MBA's project schedule the approval of the EIR is estimated to be completed in approximately 72 weeks. Based upon this 72 week schedule I have estimated for my time at 12 hours a week for the next 72 weeks at my billing rate of $100 per hour. This computes to a fee of $86,400.00. 1 will continue to provide services on an as needed basis and will continue to outline those services in my monthly invoices. Sincerely, Mark S. Reader, PE President, Gable Engineering Inc. Marina Park Site Plan • Plerhead Improved Eweng nand lawn aae ""ad ^ne c r I} i► N !' alaeMa111M111Y NY�a n �n Cmv. 9uY9 +4F • Marina Park Concept Plan ==wOm m Proposed Plan Marina Park oy�5 i0 J� .� -x+ wr I � ". City of Newport Beach BUDGET AMENDMENT 200748 'EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues NX from unappropriated fund balance EXPLANATION: NO. BA- 08BA -053 AMOUNT: 51,070,727.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To increase expenditure appropriations from unappropriated General Fund balance to enter into a contract for preparation of schematic design services, environmental impact report and geotechnical investigation for Marina Park. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 010 3605 General Fund Balance REVENUE ESTIMATES (3601) Fund/Division Account EXPENDITURE APPROPRIATIONS (3603) Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: Signed: Description Description 7411 Marina Park C4002002 Marina Park Financial Approval: Administr090e Services Director Amount Debit Credit $1,070,727.00 ` Automatic $1,070,727.00 Date Date Signed: City Council Approval: City Clerk Date