Loading...
HomeMy WebLinkAbout23 - Marina Park ProjectCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 23 September 22, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Mark Reader, Contract Project Manager 949 -981 -5260, mreadero @city.newport- beach.ca.us SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH SIRIUS ENVIRONMENTAL FOR PREPARATION OF A RE- CIRCULATED DRAFT EIR FOR MARINA PARK PROJECT APPLICANT NAME: City of Newport Beach RECOMMENDATION: Authorize the Mayor to execute the attached agreement with Sirius Environmental to prepare the Re- circulated Draft EIR for a cost not to exceed $84,300.00. BACKGROUND: The Marina Park site is located on the bay side of the Newport Peninsula between 15`h and 18`h Street. The re -use of the property 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. A sailing center building is proposed to support the needs of various sailing programs within the community and a Community Center is proposed to provide community programming needs. 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. 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 for the schematic design phase of the Marina Park Project and proceed with preparation of CEQA documents. On March 25, 2008, the City Council approved a Professional Services Agreement with Michael Brandman and Associates to prepare an Environmental Impact Report (EIR) for the Marina Park Project. The EIR was circulated for public review between February 27 and April 13, 2009. Marina Park - Sirius Environmental Agreement September 22, 2009 Page 2 Discussion The project proposes a variety of uses such as a marina, community buildings and park. The Draft EIR document addressed the potentially significant environmental impacts that may be associated with the planning, construction and operation of the project as well as identified appropriate and feasible mitigation measures and alternatives that may be adopted to significantly reduce or avoid these impacts. During the public review period, the City received comment letters from regulatory agencies including City of Irvine, Newport Beach Environmental Quality Affairs Citizens Advisory Committee (EQAC), homeowner associations, and residents, requesting further clarification and additional technical analysis including policy determinations. Staff concludes that such clarification is necessary and thereby will require re- circulation the draft EIR. The re- circulated EIR will include additional technical studies to address comments by the California Coastal Commission, California Department of Toxic Substance Control, California Regional Water Quality Control Board, and the US Department of Commerce National Oceanic & Atmospheric Administration relating to the construction of the marina. Further site remediation analysis is needed for the Southern California Edison parcel (which the City is currently in negotiations to purchase). In addition to the technical studies provided, detailed information regarding possible phases for the project will be included in the re- circulated EIR. The following is a brief summary of the phases: Phase I — will include removal of the existing Marina Park mobile home structures. The footprint which was occupied by the coaches will be transformed into an open space park, utilizing the existing soil onsite with concrete sidewalks and a temporary restroom facility. The existing sidewalk and trees adjacent to the beach will remain. The existing alley will be restriped to provide parking and the existing gates at the mobile home park will be removed to provide continuous alley access from 15m to 18th Street. Please refer to the Phase I Exhibit. Phase II — will be a continuation of Phase I whereas the City has the option to provide more of a "park- like" setting with provision of turf, picnic tables, and benches. Please refer to the Phase II Exhibit. Phase III — will consist of the full build out of the Marina Park Project as indicated on the Phase III Exhibit. The re- circulated EIR document will evaluate the project phases so that each phase could be approved and implemented independently. Proposals were requested from two firms to provide services for re- circulation of the Marina Park EIR. Staff recommends the Draft EIR to be re- circulated should be completed by Sirius Environmental as this will provide a more aggressive schedule to the City. Sirius Environmental's proposal recognized the high level of public interest in this project by including a reasonable budget for preparation, coordination, and communication in the EIR process. Marina Park - Sirius Environmental Agreement September 22, 2009 Page 3 The attached Proposal from Sirius provides a scope of work, and fee schedules for the preparation of a re- circulated Draft EIR for the Marina Park Project. This proposal has been reviewed by the City Attorney's Office and Planning staff. Compensation for the EIR is not to exceed $84,300.00. It is anticipated that reproduction and mailing costs will be $5,000.00 which will be paid to the vendors directly by the City. The Draft EIR should be available for public review in 7 weeks (the week of November 9, 2009) and Final EIR approval accomplished 19 weeks from the date of Council approval. February 9, 2010, is the estimated date for certification of the EIR. Since the project is the City's capital improvement project, the City will be responsible for the cost of preparing the EIR. Fundinq Availability: Sufficient funds are available in the following FY 09/10 CIP accounts for the project: Account Description General Fund Prepared by: ntract Project Manager Account Number 7411- C4002002 Attachment: PSA with Sirius Environmental Sirius Environmental Scope of Services Marina Park Site Plan Exhibit Phase I Marina Park Site Plan Exhibit Phase II Marina Park Site Plan Exhibit Phase III Total Amount $89,300.00 $89,300.00 Submitted by: S phe adum Public orks Director 0 600Z'81 *ftPmMwwWMMM"m%mm I 0z' 09 ot 0 Ueld I 9se4d lied eu1jew ----------- Uj0wQuML(0AW Supspa� asnoN Ino3s 111D F n slow Ou I13 N94R3 -- q9- I T T-T -T -IrIFT-1 jajuaO p1winos LW04FAL ,Unwwo 141unwwao F0qIeg 1 10 uvpm�. �; I i I I i i lot I I I I _j i i i i T 7) ww w a w 'r SIU10.12UPPed ON P91"M vteows 01 Kos ;U8s1%3 Ilem 40018 2ulign ammou Salgo aAOW98 - ssa00V 4WO8 Je SCIKS $UJISIX3 ;j"ojpje,*a;jjPuqst.qi I Existing Lifeguard loft( . —New Lifeguard Tow Beach I I r-- Existing Steps at Beach Access - Remove Gates ,4 ry "m Co un! Existing otflwa� ter Em, I [GliriScout ca H, (PR House 't EdsthgbrhewS,%WAOm4fn Balboa Boulevard ------------ Marina Park Phase 2 Plan 0 30 60 120 "' U — mmm6mmmmijA 18, 2009 O Renraine Existing ilocit W611 Nemlorf Area . Ad dftn at Decomposed Wolf a rift t. V Alit Existing Edge of'Paying dk a 4b r F 1 ®, i I 1 1 1 1 1 11 1 1 11 i is al 7 1 71 11 If, I i i I ITi I'l jj!js 1 [7 TT-17 m VNIIC�a J. that I .—I'- 12-1-o—.- .--- - ,4 ry "m Co un! Existing otflwa� ter Em, I [GliriScout ca H, (PR House 't EdsthgbrhewS,%WAOm4fn Balboa Boulevard ------------ Marina Park Phase 2 Plan 0 30 60 120 "' U — mmm6mmmmijA 18, 2009 O ..... ..... . . Marina Park Schematic Plan September 9, 2009 O0 50 100 150 250 "Al T� 1_ t Existing l „erma PaMRdadJZ Hcme Park ;.vow Ilk- 2 Cam ^. wnityr<r;fei � ' 4 7an2'S CetnYs 4M 5 HallBaskelbal /Court k ^+ - _ E Las Arenas Pak B Res Uenla/O: pJer qy _° f0 Amexan Legon POSl.R791. f7 No1e1 12 Amelieao Legion Park - f3 pump sraf'on l4 1gh SbeelResf room f5 Padage ✓esse/LaancAArea low T� 1_ t Existing ;.vow Ilk- .:low., PROFESSIONAL SERVICES AGREEMENT WITH WENDY LOCKWOOD DBA SIRIUS ENVIRONMENTAL FOR MARINA PARK PROJECT THIS AGREEMENT is made and entered into as of this day of September, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation( "City "), and WENDY LOCKWOOD, DOING BUSINESS AS (dba) SIRIUS ENVIRONMENTAL a sole proprietorship whose address is 1478 North Altadena Dr., Pasadena, CA, 91107( "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 develop City -owned property commonly known as Marina Park at 1700 W. Balboa Boulevard. C. City desires to engage Consultant for preparation of the re- circulated draft EIR and the final EIR as outlined in the Sirius Environmental 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[s] of Consultant for purposes of this Project, shall be Wendy Lockwood. 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 31 day of July, 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 either telephone, fax, hand- delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Eighty Four Thousand, Three Dollars and no /100 ($84,300) 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 limited and include nothing more than the following costs incurred by Consultant: r. 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 Wendy Lockwood 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 representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. Z 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 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. 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 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 ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile 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. 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. 7 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 A City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other parry. 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. 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. ii 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. 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 n 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: Dave Webb Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3328 Fax: 949 - 644 -3328 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attn: Wendy Lookwood Sirius Environmental 1478 North Altadena Dr Pasadena, CA, 91107 Phone: 626- 808 -0031 Fax: 866- 698 -5178 11 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. 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. SEVERASILITY 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. 1q IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, A Municipal Corporation By: ynett e h m , Assistant City A hey ATTEST: Leilani Brown, City Clerk Edward Selich Mayor for the City of Newport Beach CONSULTANT: 10 Sirius Environmental Title: Sole Proprietor Print Name: Wendy Lockwood Attachments: Exhibit A — Scope of Services Exhibit B — Billing Rate fx_wal� Ar Sirius Environmental September 3, 2009 Mr. David Lepo, Planning Director Ms. Rosalinh M. (Jug, Associate Planner City of Newport Beach 3304 Newport Boulevard Newport Beach, CA 92663 Re: Proposed Scope of Work, Schedule and Costs to prepare a Recirculated Draft EIR (RDEIR) and Final EIR (FEIR) for the Marina Park project Dear David and Res: As we discussed, enclosed please find our proposed scope of work, schedule and costs to prepare a Recirculated Draft EIR and Final EIR for the Marina Park project. We look forward to working with you on this project. We understand the time - sensitive nature of the EIR and are conunitted to meeting your schedule. David and Ros, if you have any questions or would like me to expand on any aspect of the attached please call or send me an e -mail. Yours sincerely, Wendy Lockwood Principal 1478 N. Altadetna Drive, Pasadena, California 91107 626 -808 -0031 www.siriusenvironmental.com Sirius Environmental Proposal Marina Park Recirculated Draft EIR (RDEIR) Sirius Environmental September 3, 2009 Scope of Work Task 1: Revise Project Description. This task includes revising the project description to reflect the 3- phased project: Phase 1: Removal of mobile homes (coaches), and replacement with a (rough) sand park (with temporary restrooms adjacent to the parking area); also addition of a new lifeguard tower on the beach. The boardwalk and shrubbery along the beach will be maintained. Phase 2: Replacement of the sand park with grass, conversion of the existing alley section into temporary metered public parking (still under consideration). Phase 3: As analyzed in the original Draft EIR: new park configuration with new basketball and tennis courts, new restrooms, reconfigured green space and parking, new children's play area, new Balboa Center multi- purpose building and sailing program, replacement Girl Scout house and new visiting vessel marina and general purpose marina. Additional detail on project elements will be brought in to the Project Description (e.g., number of pilings; design of the groin, seawall, and docks; potential marina circulation enhancement measures) in response to questions raised in agency comment letters. In particular the purpose and need for the new marina including the bulkhead and groin wall will be documented. The Project Description will also be augmented to include a description of project construction (including estimated duration of activities). Elements will include the anticipated pile driving techniques; dredge and fill quantities; dredging techniques; dredged material quality, disposal techniques, and locations; sand compatibility; tree removal timing and controls; construction -phase air and water pollution controls). These revisions will ensure that the impact analyses are properly set up and consistent with one another and that the full scope of project activities is disclosed, as it should be, in the Project Description. The Project Description will be augmented to include estimates /assumptions of operational phase activities used to analyze traffic and other issue areas (vehicular traffic, boat traffic, park visitors, etc.) that are currently scattered throughout the 1478 N. Altadena Drive, Pasadena, California 91107 626- 808 -0031 www.siriusenvironmental.com Sirius Environmental appendices and impact assessment tables. Elements requested in comment letters such as relevant details of a marina management plan (anti - fouling paints, marine mammal management); clarification of the function of the on -site cafe, and other details will be included. Task 2: Revise Environmental Setting, Impact Analyses and Mitigation Measures. The existing setting overview will be augmented to include information on existing water circulation, sediment contamination, and existing activities such as traffic, boating, visitors, etc. Most of this information is available in the technical appendices, and simply needs to be brought into the text. The CEQA baseline (conditions as of May 2008, date of the NOP) can then be clearly established. We also suggest a map showing the location of cumulative projects be included in the Traffic report (to be prepared by Austin Foust Associates) and in the OR, This task includes incorporating all the new analyses to be received from technical consultants (wetland delineation, erosion /hazards, sand compatibility, traffic), as well as preparation of phased analyses of all issues. Additional noise and air quality modeling will be undertaken to reflect the phased project. In general, the impact sections will be revised to make them more consistent with one another in format, style, and level of analysis; they should be edited for clarity, and amended to reflect the revised project description. The sections will include descriptions of baseline conditions for each issue area, as well as summaries of the project elements that could have impacts in those issue areas. The text of each impact section will be edited as necessary to separate setting and methodology from impact analysis. The impact analyses will be revised to compare the project to the CEQA baseline more clearly. Certain of the issue areas, discussed below, will need additional modifications. We would anticipate working closely with City staff to obtain additional information and clarification, as necessary. The mitigation measures will be revised, in consultation with City staff, to ensure that they are specific, feasible, and relevant. Task 2A. Aesthetics The analysis of the aesthetic issues will be augmented to emphasize the aesthetic benefits of the project (removal of the mobile home park and opening up of views) and to treat in more depth the features that would exceed permissible heights. The analysis will exaluate each phase. Task 2B. Air Qualit Construction emissions for all three phases will be calculated and presented separately. Based on operational characteristics evaluated in the revised traffic study (being prepared under separate contract), operational emissions for the different phases will be discussed and modeled as appropriate. Greenhouse gas emissions will be quantified using the Urbemis model. The RDEIR will include a discussion of greenhouse gas (GHG) emissions compared to City of Newport Beach thresholds and any applicable criteria identified by State, or regional agencies (such as the Southern California Association of Governments — 2 Sirius Environmental SCAG, or the South Coast Air Quality Management District — SCAQMD). The GHG analysis will include consideration of both quantitative and qualitative factors (such as the potential for the park to provide recreational amenities to local residents thereby reducing vehicle miles travelled and GHG emissions, also any energy /water saving features of the project). Task 2C. Bioloav The setting section will include more detailed information on the wetlands status of the site, per the delineation undertaken by MBA. The impact assessment will be revised to provide more focus and detail concerning project impacts on fish habitat, especially EFH, invasive species, and eelgrass. As an example, the conversion of intertidal habitat to sub -tidal habitat is an impact on EFH. Although the project's footprint would be small, it is of concern primarily from a cumulative standpoint, since, as Newport Bay has developed to support recreational boating, beach and intertidal shoreline has been converted to bulkhead. The section will be augmented with a more thorough discussion of construction noise that takes into account recent NMFS guidance on underwater noise and marine mammals (National Marine Fisheries Service. 2003. Taking of Marine Mammals Incidental to Specified Activities; Construction of the East Span of the San Francisco - Oakland Bay Bridge. Notice of issuance of an incidental harassment authorization. 68 Federal Register 64595 - 64609). This section will also include a summary of the biological assessment (to be prepared under separate contract) of the four sand disposal sites. (The full Biological Assessment of the four beaches will be included as an Appendix.) Task 2D. Cultural Resources Revisions to address the three - phased project are anticipated in this section. Task 2E. Land Use The land use section will be revised to clarify the relationship between the Coastal Act and the City of Newport Beach's Coastal Land Use Plan (Local Coastal Program), as well as to present a summary of the current status of the Coastal Land Use Plan and the implications for not having an adopted LCP (Coastal Development Permit from the Coastal Commission). The history of the City's interaction with the Coastal Commission on the LCP will be described. Of particular concern is the implications of the 2006 changes to the dredge, dike, and fill language of the Coastal Act. This revision is vital for the marina component of the project, and will be undertaken in close cooperation with City staff. Complete /augment comprehensive policy analysis of project compared to all applicable General plan policies. Task 2F. Hazards A Phase II Environmental Site Assessment (ESA) is underway for the Southern California Edison property (under separate contract) to characterize the potential contamination and identify any appropriate mitigation measures. The Phase II ESA will be summarized and incorporated in to the Recirculated Draft EIR. Sirius Environmental Task 2G. Hvdrolociv and Water Qualit The water quality and hydrology section will be revised to address project phasing and incorporate information on existing and with - project coastal processes, i.e., shoreline erosion. Everest International (under separate contract), will prepare: 1) an opinion letter on coastal processes and potential impacts of the project, 2) a revision of the previous analysis conducted using the hydrodynamic and water quality model to reflect the change in groin wall, 3) a qualitative discussion of long -term water quality management in the marina as a result of increased population in the area and use of motors in the marina. Fuscoe Engineering (under separate contract) will provide further discussion on the evaluation of surface runoff on the land portion of the site (an evaluation of surface water runoff is included in the Preliminary Water Quality management Plan — WQMP). The section will also be revised to include more up -to -date information on the regulatory setting, per the RWQCB comments, including the status of regional TMDLs, the City's MS4 permit, the construction storm water permit, and the Basin Plan. We assume that Fuscoe and Everest will provide sufficient information to generally evaluate any potential for significant project- specific impacts on TMDLs. The impact analysis will incorporate more detail on the effects of construction pollution control measures, and will explain how the proposed marina would not introduce additional pollutants into the bay system (the vessels would come without the marina, but would be accommodated at offshore moorings). 2H. Noise Construction and operational impacts of the three - phased project will be evaluated based on construction equipment anticipated for all three phases and operational characteristics of all three phases analyzed in the traffic report. 21. Public Services Revisions to this section are anticipated to reflect the change to a three - phased project. 2J. Transportation The revised traffic analysis (being prepared under separate cover by Austin Foust Associates) to address the three - phased project will be summarized in the Recirculated Draft E1Ra It is assumed that the revised traffic analysis will include an updated list (and map) of cumulative projects. 2K. Utilities Revisions to this section are anticipated to reflect the change to a three - phased project. Task 3: Alternatives. This task includes revising the alternatives analysis to add substance and reflect the revised technical analyses. In addition the alternatives will be revised to reflect similar phasing to the project as appropriate. Discussion of an alternative site will be added. Sirius Environmental The alternatives analysis will be substantially augmented in order to ensure that CEQA's intent that "the EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project" (CEQA Guidelines 15126.6(d)). The range of alternatives in the draft Marina Park EIR is reasonable, but there is insufficient information on the impacts of those alternatives to support a meaningful comparison of the alternatives with the proposed project. More description will be provided concerning the key differences between the alternatives and the proposed project, and detailed descriptions, quantitative where feasible and necessary, of the impacts associated with those differences will be provided. Task 4: CommentlResponse Matrix. This task includes preparation of a matrix summarizing comments received on the Draft EIR and where responses to those comments are located in the Recirculated Draft EIR, Task 5: General Editing. This task includes comprehensive review and editing and reformatting as needed of the entire document to improve readability and consistency (there will be substantial overlap between this task and Task 3, since they will be conducted at the same time, however, this task is needed even without changes to the project and addition of analyses). Chapters 1 (Introduction) and 2 (Executive Summary) will require minor editing to incorporate the revised project description and impact analyses, but will not require new studies or analyses. Task 6: Meetings and Hearings. This task includes three meetings with staff and attendance at three public meetings. Task 7: Response to Staff Comments, Preparation of Notice of Completion (NOC) and Notice of Availability (NOA) and Print Instructions. This task includes response to staff comments (one set of unified comments) on the screencheck Draft EIR. Given staff's substantial background in the project, their input will be sought early and often to reduce review time. A "proof copy" of the document will be submitted to City staff for their review prior to delivering to the printer. This task includes preparation of a print ready Recirculated Draft EIR and the NOC and NOA as well as providing print instructions to the printer. It does not include reproduction or mailing costs, or costs of posting notices at the County Clerk or in the newspaper. Task 8: Response to Public/Agency Comments and Preparation of Mitigation Monitoring and Reporting Program (MMRP). This task includes response to all public /agency comments and preparation of a Final EIR (Addendum Format) for staff review. This task also includes response to staff comments on the Final EIR. This task also includes preparation of a Mitigation Monitoring and Reporting Plan. This task includes preparation of a print -ready document (FEIR) as well as print instructions. It does not include reproduction or mailing costs, or costs of posting notices at the County Clerk or in the newspaper. It assumes 50 hours of Sirius staff time will be sufficient for this task. Task 9: Findings Preparation of Notice of Determination (NOD). This task includes preparation of the Findings of Fact and Statement of Overriding Considerations as well as the NOD. (It does not include the CDFG or other fees or costs associated with posting the NOD.) Schedule Completion of all outside studies (Everest, Fuscoe, AFA): Submit Screencheck Draft REIR: Staff Review Completed: Revisions completed (proof copy available to staff October 30): Printing completed, publish Draft REIR: End of Comment Period: First Draft R to CIFEIR: Staff Review: Revisions completed: Publish Final EIR Certification Sirius Environmental September 30, 2009 October 19, 2009 October 27, 2009 November 2, 2009 November 9, 2009 December 23, 2009 January 6, 2010 January 13, 2010 January 20, 2009 January 27, 2010 (Jan 29 latest) February 9, 2010 Sirius Environmental Cost Estimate TASK UNITS SUBTOTAL TOTAL Screencheck Draft EIR Task 1: Revise Project Description 32 hrs $5,000.00 Task 2: Revise Impact Analyses 160 hrs $24,000.00 Task 3: Re -write Alternatives 32 hrs $5,000.00 Task 4: Comment Matrix 16 hrs $2,400.00 Task 5: General Review Editing 100 hrs $15,000.00 Subtotal Screencheck . 340 hrs $51,400 Task 6: Meetings and Hearings 60 $10,000 Task 7: Response to Staff Comments, DEIR 50 $7,500 Print Instructions, NOC and NOA Task 8: Response to Public /Agency Comments, 50 $7,500 FEIR Print Instructions and MMRP Task 9: Findings, NOD 40 $6,400 TOTAL LABOR 540 $82,800 Other Direct Costs Mileage @ $0.55 per mile, misc other $1,500 TOTAL BUDGET: $84,300 7 4k19, t 0 Sirius Environmental BILLING RATES .Category Hourly Billing Rate Principal ------- 00 Managing Consultant $150 0 . 0 Senior Consultant $120-00 Associate $90.00 Administrative I Graphics/Clerical $75.00 1478 N. Alfadena Drive, Pasadena, California 91107 626 808 0031 www.siriusenviroDmental.com "IMM L' � a �f a 4, S� Y re T Existing site m A" Al .c I'M L :a 011 Oar A" Al .c I'M