Loading...
HomeMy WebLinkAbout08 - Newport Banning Ranch Development PSACITY OF �tiW Pp�T NEWPORT BEACH City Council Staff Report Agenda Item No. 8 April 26, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community Development Department Dana Smith, Assistant City Manager 949 - 644 -3002, dsmith @newportbeachca.gov PREPARED BY: Terresa Moritz APPROVED: ,' w M� n� TITLE: Professional Services Agreement with Bonterra Consulting LLC for Environmental Services Related to Newport Banning Ranch Development ABSTRACT: Community Development staff requests approval of a professional services agreement with Bonterra Consulting for environmental services for Newport Banning Ranch. RECOMMENDATION: Receive and file. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. The entire cost of these consulting services will be reimbursed to the City by the applicant, Newport Banning Ranch, LLC DISCUSSION: Newport Banning Ranch, LLC has filed an application for a Planned Community Development Plan, Master Development Plan, Zoning Code Amendment, and Vesting Tentative Tract Map to allow development of the Banning Ranch property as allowed in the General Plan. The application may also require the approval of amendments to the General Plan Circulation Element and the Master Plan of Arterial Highways. The proposed development would include 1,375 residential units, 75,000 square feet of 1 PSA with Bonterra Consulting LLC for Newport Banning Ranch April 26, 2011 Page 2 commercial use, 75 overnight accommodations, 45 acres of parks and 243 acres of open space. The project requires the preparation of an environmental impact report (EIR). The City previously entered into a professional services agreement with Bonterra Consulting LLC for preparation of a screencheck and Draft EIR for the project. This agreement expired in February 2011 and a new agreement is needed to complete the EIR. Furthermore, as the project has advanced, the City has identified additional services, over and above the scope of services approved in the initial agreement and amendments to the agreement, which are required in order to complete the City's review of the project. Changes to the project includes incorporation of the community park as part of the project -level entitlements; an updated traffic study to reflect methodology directives identified in the appellate court ruling in Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council; and revisions to the air quality, air toxics, and greenhouse gas (GHG) emissions analyses will be made based on the need to update these analyses using the new State Air Quality Management District's California Emissions Estimator Model (CalEEMod). The project scope has also been revised to include services necessary for completion of the Final EIR, including responses to comments on the Draft EIR. The orgininal agreement and amendments were for an amount not to exceed $1,842,074.58. The new agreement includes a $429,080.90 augment, bringing the total amount not to exceed $2,271,155.48_ ENVIRONMENTAL REVIEW: Retention of consultants is not a project as defined by CEQA Submitted by: Dana Smith Assistant City Manager Attachments: A. Professional Services Agreement with Bonterra Consulting LLC 2 PROFESSIONAL SERVICES AGREEMENT WITH BONTERRA CONSULTING LLC FOR ENVIRONMENTAL SERVICES RELATED TO NEWPORT BANNING RANCH DEVELOPMENT THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this day of April, 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and, Bonterra Consulting, LLC, a California limited liability company, whose address is 151 Kalmus Drive, Suite E -200, California, 92626 ( "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 considering an application for the development of Banning Ranch. C. City desires to engage Consultant to complete the Draft Environmental Impact Report (EIR) for the proposed development in accordance with the California Environmental Quality Act (CEQA) ( "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 Project, shall be Dana C. Privitt. 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 June 30, 2012, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3 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 Four Hundred Twenty - Nine Thousand and Eighty Dollars and 901100 ($429,080.90) 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: Bonterra Consulting Page 2 4 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. 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 Dana C. Privitt, AICP to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 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 Community Development Department. PATRICK ALFORD or his designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his or 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: Bonterra Consulting Page 3 5 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 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. 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 any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement, or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Bonterra Consulting Page 4 6 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. Bonterra Consulting Page 5 7 A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. C. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant'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. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Bonterra Consulting Page 6 8 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 $1,000,000 combined sinale limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage. Bonterra Consulting Page 7 9 E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. 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. 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 Bonterra Consulting Page 8 10 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. 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel and /or portable document format (.pdf). 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. 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. 21. 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. 22. 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. Bonterra Consulting Page 9 11 23. 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. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. 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. 26. 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: Attention: Patrick Alford City of Newport Beach Community Development Department - Planning 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Phone: 949- 644 -3235 Fax: 949 - 644 -3229 Bonterra Consulting Page 10 12 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Dana C. Privitt, AICP Bon Terra Consulting 151 Kalmus Drive, Suite E -200 Costa Mesa, CA 92626 Phone: 714 - 444 -9199 Fax: 714 - 444 -9599 27. 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. 28. 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. 29. 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. Bonterra Consulting Page 11 13 30. 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. 31. 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. 32. 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. 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. 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. 35. 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. 36. 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. Bonterra Consulting Page 12 14 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE F TH CITY ATTORNEY Date By: Leonie Mulvihill Assistant City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Michael F. Henn Mayor CONSULTANT: BONTERRA CONSULTING. LLC, a limited liability company Date: By: Joan P. Kelly Managing Member Attachments: Exhibit A — Scope of Services Exhibit B — Billing Rates f: \temp \templates \contracts \form ceqa professional services agreement.dotx Bonterra Consulting Page 13 15 C. O N S U L T I N G March 23, 2011 PASADENA COSTA MESA T: (714( 444.9199 F. (714( 444 -9599 1 151 Kolmus Drive, Suite E -2W a .SonTemaConsulfingxam Co <fa 114em, CA 92626 Mr. Patrick Alford VIA EMAIL AND MAIL Planning Manager PAlford@newpoatbeachca.gov City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Subject Newport Banning Ranch Project Consulting Services Dear Mr. Alford: Thank you for the opportunity to continue to work with the City of Newport Beach on the Newport Banning Ranch Project. As a part of the City's Project Team for the Newport Banning Ranch Project, BonTerra Consulting has been assisting the City in the preparation of California Environmental Quality Act (CEQA) documentation for the proposed project. At the request of the City, we have prepared a summary of the anticipated remaining work tasks that are required associated with completion of the Draft Environmental Impact Report (EIR) for release for public review. The work tasks identified in Attachment A are for the BonTerra Consulting Project Team including but not limited to Kimley -Horn and Associates, Inc., CDM, and VisionScape Imagery, Inc. We have also provided our billing rate sheet. Please feel free to contact me if you have any questions or require additional information. Sincerely, BONT SU TING Da a C. Privitt, AICP Principal A: TmleuswewponuotsrmposalsNada+ed sow- aazail.d= r' IENV10.0NMENTAL PInNNI Z 1s&E50U &CE MANAGEMENT' Newport Banning Ranch Pmiecl ATTACHMENT A • Meeting attendance. Attendance at and participation in project meetings including but not be limited to meetings with City staff; meetings with the City and the Applicant's project team; meetings with affected and interested parties, the latter including but not limited to adjacent jurisdictions. • Ongoing project management. Section 1.0, Executive Summary, and Section 2.0, Introduction. Sections will be updated based on changes in project assumptions (addressed below), and complete the sections based on the City's review of the EIR prior to completion of the Draft EIR. • Section 3.0, Project Description. Revisions associated with changes to the project and applicable documentation (Master Development Plan, PC Text, etc.) will be made to the Project Description. Changes include incorporation of the Community Park as a part of the project -level entitlements for the project, and receipt of information regarding the Development Agreement and affordable housing assumptions. All sections of the EIR will be reviewed based on these changes. • Section 4.1, Land Use and Related Planning Programs. Section will be updated based on changes in project assumptions and the section will be completed based on the City's review of the EIR prior to completion of the Draft EIR. • Section 4.2, Aesthetics and Visual Resources. Section will be updated based on changes to the project. Revisions will include updates to visual simulations and exhibits. Section 4.3, Geology and Soils; Section 4.4, Hydrology and Water Quality, Section 4.5, Hazards and Hazardous Materials, Section 4.13, Cultural and Paleontological Resources, and Section 4.15, Utilities. These sections are being reviewed again by BonTerra Consulting prior to release of the Draft EIR. • Section 4.6, Biological Resources. Additional data and mapping will be reviewed to determine if any modifications to the analysis would be required. • Section 4.7, Population, Housing, and Employment. Revisions to the EIR section will be made based on changed assumptions for the provision of affordable housing associated with the proposed project. This change will also require revisions to the Project Description; Alternatives Section; and Cumulative Impacts Section. • Section 4.8, Recreation and Trails. Changes to the Community Park land use assumptions will be incorporated into this EIR section and evaluated. • Section 4.9, Transportation and Circulation. Based on consultation with adjacent jurisdictions, the traffic study will be updated to reflect changes in the Community Park land use assumptions and potential modifications to overall traffic assumptions. The traffic study will also be updated to reflect methodology directives identified in the appellate court ruling in Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council. These updates will be incorporated into the Transportation and Circulation Section; Alternatives Section; and Cumulative Impacts Section. • Section 4.10, Air Quality and Section 4.11, Greenhouse Gas Emissions. Revisions to the air quality, air toxics, and greenhouse gas (GHG) emissions analyses will be made R: \Prolects�NmponU016\ Proposals \Updated SOW432311.docx A -1 Work Tasks 17 Ranch based on the need to update these analyses using the new State Air Quality Management District's California Emissions Estimator Model (CalEEMod). The analyses will also be revised based on the updated traffic study. The Air Quality Section; Greenhouse Gas Emissions Section; Cumulative Impacts Section; and Alternatives Section will also be updated to reflect these changes. • Section 4.12, Noise. Revisions to the noise analysis will be completed based on changes identified above in the traffic study. • Section 4.14, Public Services and Facilities. Revisions and new analysis in the Public Services and Facilities Section will be completed based on changed assumptions for the provision of fire services. This will also require changes to the Alternatives Section and the Cumulative Impacts Section. • Section 5.0, Cumulative Impact. Revisions will be made based on potential changes in the technical analyses, project changes, and changes in the status of and additional cumulative projects. • Section 5.0, Long -term Implications of the Proposed Project. Section will be updated based on changes in project assumptions and the section will be completed based on the City's review of the EIR prior to completion of the Draft EIR. • Section 6.0, Alternatives to the Proposed Project. Section will be revised based on changes in project assumptions and technical analyses. • Graphics. Revisions to and creation of new EIR graphics associated with project modifications— including but not limited to the Community Park and updated traffic, air quality, and noise analyses —will be completed. • Other. Additional revisions will be made, as appropriate, upon submittal of a comprehensive EIR to the City for review. BonTerra Consulting will be responsible for revisions to the review document and publication of the Draft EIR. R: \Pmjects\NewponUO15Pmposats \Updated SOW4332311.d= A -2 Work Tasks W C 'J N S 'J L 7 I Al G JULY 2010 - JULY 2011 FEE SCHEDULE PROFESSIONAL CLASSIFICATION Principal Associate Principal Air Quality /Climate Change /Noise Manager Regulatory Permitting Manager Biological /Environmental Manager Senior Planner /Senior Project Manager Noise and Transportation Engineer Senior Ecologist/Senior Restoration Ecologist Project Manager Cultural Resources Manager Senior Biologist/Biological Project Manager Air Quality /Climate Change /Noise Specialist Planner /Assistant Project Manager Field Monitor (depending on expertise) Ecologist GIS Specialist Technical Writer /Editor Graphic Artist Project Assistant Administrative Assistant REIMBURSABLE COSTS HOURLY BILLING RATE $175 -225 150 -185 195 -205 155 -170 135 -155 120 -160 120 -150 120 -140 115 -140 120 -130 115 -140 100 -125 85 -110 75 -125 75 -95 85-95 85 -95 85 -95 70-75 70 -75 Mileage Federal Standard Mileage Rate Reprographics (Outside) at cost plus 10% Reprographics (Inside) Request Printing fee sheet Other Out -of- pocket Expenses at cost plus 10% Subconsultants at cost plus 10% Plotting: Field Maps $2.50 per sq ft Display /Oversized /High Quality Graphics $10 per sq ft Aerial Maps: Less than 500 acres $200 Aerial Maps: 500 -1,500 acres $350 Aerial Maps: Greater than 1,500 acres $500 151 Kalmus Drive, Suite E -200 Costa Mesa, CA 92626' (714) 444 -9199 (714) 444 -9599 Fax 3452 E. Foothill Blvd., Suite 420, Pasadena, CA 91107 ` (626) 351 -2000' (626) 351 -2030 Fax 19 C O N S U C 7! N G An Environmental Planning/Resoume Management Corporation Task Employee Project Meetings Project Mgmt. Revised Screencheck EIR K. Brady D. Privitt A. Johnston Clerical Administration K. Brady D. Privitt A. Johnston Administration K. Brady D. Privitt A. Johnston J. Kurtz F. Sotelo L. Robb K. Quinn J. Cho J. Neary M. Keith GIS /Graphics Editing Word Processing Clerical Administration Hours Rate Subtotal Augment Request 78.0 $ 205.00 $ 15,990.00 $ 44,926.20 117.0 $ 180.00 $ 21,060.00 32.0 $ 180.00 $ 5,760.00 18.0 $ 70.00 $ 1,260.00 0.0 $ - $ 856.20 58.0 $ 205.00 $ 11,890.00 $ 33,609.00 117.0 $ 180.00 $ 21,060.00 0.0 $ 175.00 $ - 0.0 $ - $ 659.00 40.0 $ 205.00 $ 8,200.00 $ 70,170.90 100.0 $ 180.00 $ 18;000.00 48.0 $ 180.00 $ 8,640.00 26.0 $ 195.00 $ 5,070.00 40.0 $ 125.00 $ 5,000.00 24.0 $ 120.00 $ 2,880.00 12.0 $ 120.00 $ 1,440.00 18.0 $ 125.00 $ 2,250.00 9.0 $ 95.00 $ 855.00 40.0 $ 85.00 $ 3,400.00 80.0 $ 90.00 $ 7,200.00 40.0 $ 80.00 $ 3,200.00 _ 30.0 $ 70.00 $ 2,100.00 8.0 $ 70.00 $ 560.00 0.0 $ - $ 1,375.90 20 6enteme Nepmaamrvig Ranm.rotSAVgmennoat9tt Page 1 of 3 C 0 N S U IT I N G An Environmental Planning/Resoume Management Corporation Task Employee Hours Rate Subtotal Augment Request Draft EIR K. Brady 24.0 $ 205.00 $ 4,920.00 $ 36,408.90 D. Privitt 36.0 $ 180.00 $ 6,480.00 A. Johnston 24.0 $ 180.00 $ 4,320.00 J. Kurtz 9.0 $ 195.00 $ 1,755.00 F. Sotelo 9.0 $ 125.00 $ 1,125.00 J. Cho 16.0 $ 125.00 $ 2,000.00 L. Robb 16.0 $ 120.00 $ 1,920.00 K. Quinn 9.0 $ 95.00 $ 855.00 M. Keith 16.0 $ 85.00_ $ 1,360.00 GIS 24.0 $ 90.00 $ 2,160.00 Editing 40.0 $ 80.00 $ 3,200.00 Word Processing 40.0 S 70.00 S 2,800.00 Clerical 40.0 $ 70.00 S 2,800.00 Administration 0.0 $ - S 713.90 Responses to Comments K. Brady 100.0 $ 205.00 $ 20,500.00 $ 102,183.60 D. Privitt 200.0 $ 180.00 $ 36,000.00 A. Johnston 60.0 $ 180.00 $ 10,800.00 J. Kurtz 24.0 $ 195.00 $ 4,680.00 F. Sotelo 32.0 $ 125.00 $ 4,000.00 J. Cho 32.0 $ 125.00 $ 4,000.00 L. Robb 52.0 $ 120.00 $ 6,240.00 GIS 24.0 $ 90.00 $ 2,160.00 Editing 60.0 $ 80.00 $ 4,800.00 Word Processing 40.0 $ 70.00 $ 2,800.00 Clerical 60.0 $ 70.00 $ 4,200.00 Administration 0.0 S - $ 2,003.60 Preparation of Findings K. Brady 25.0 $ 205.00 $ 5,125.00 $ 46,272.30 D. Privitt 200.0 $ 180.00 $ 36,000.00 Editing 32.0 $ 80.00 $ 2,560.00 Word Processing 24.0 $ 70.00 $ 1,680.00 Administration 0.0 $ - $ 907.30 Hearings K. Brady 32.0 $ 205.00 $ 6,560.00 $ 33,140.00 D. Privitt 65.0 $ 180.00 $ 11,700.00 A. Johnston 40.0 $ 180.00 $ 7,200.00 J. Kurtz 24.0 $ 195.00 $ 4,680.00 F. Sotelo 24.0 $ 125.00 $ 3,000.00 Word Processing 24.0 $ 70.00 $ 1,680.00 Administration 0.0 $ - $ 696.40 21 9ontena Nnrycnaa =Ng Ra =ft J015 AnmemA61911 Page 2 of 3 M Envimnmental Planning/Resoume Management Corporation Task Employee Hours Rate Subtotal Augment Request Total Professional Fees $ 366,710.90 SUBCONSULTANTITECHNICAL REPORTS Requested Augment Traffic & Parking: Kimley -Horn for DEIR $ 22,000.00 Traffic & Parking: Kimley -Horn for Responses to Comments $ 20,000.00 Traffic & Parking: Kimley -Horn for Hearings $. 6,500.00 Traffic Modeling: Urban Crossroads $ 3,300.00 Visual Simulations: VisionScape Imagery $ 4,900.00 Subconsultant Admin. S 5,670.00 Total Subconsultant Fees $ 62,370.00 TOTAL AUGMENT REQUEST $429,080.90 22 som.. Ne ,wsN�Nng,lariCt,.O1S:wgmeN-0a1911 Page 3 of 3