HomeMy WebLinkAboutC-5744 - PSA for 3-thirty-3 Waterfront Restaurant Acoustical Consulting ServicesPROFESSIONAL SERVICES AGREEMENT
WITH RS ACOUSTICS INC. FOR
3- THIRTY -3 WATERFRONT RESTAURANT ACOUSTICAL CONSULTING
SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is made and
entered into as of this 27th day of March, 2014 ( "Effective Date "), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city
( "City "), and RS ACOUSTICS INC., a California corporation ( "Consultant "), whose
address is 15751 Beaver Run Road, Canyon Country, CA 91387, and is made with
reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide acoustical consulting services for 3-
Thirty-3 Waterfront Restaurant ( "Project ").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2015, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ( "Services"
or "Work "). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
performed to completion in a diligent and timely manner. The failure by Consultant to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to-
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all Work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed Fourteen
Thousand Three Hundred Ninety Dollars and 00/100 ($14,390.00), without prior
written authorization from City. No billing rate changes shall be made during the term of
this Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and /or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) calendar days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically identified in Exhibit B to this Agreement or specifically approved in writing in
advance by City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
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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
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Robert Schmidt to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Community Development
Department. City's Assistant Planner or designee shall be the Project Administrator and
shall have the authority to act for City under this Agreement. The Project Administrator
shall represent City in all matters pertaining to the Services to be rendered pursuant to
this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first -
class firms performing similar work under similar circumstances.
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8.2 All Services shall be performed by qualified and experienced personnel
who are not employed by City. By delivery of completed Work, Consultant certifies that
the Work conforms to the requirements of this Agreement, all applicable federal, state
and local laws, and the highest professional standard.
8.3 Consultant represents and warrants to City that it has, .shall obtain, and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers 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,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims'), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Consultant's presence or
activities conducted on the Project (including the negligent, reckless, and /or willful acts,
errors and /or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly
by any of them or for whose acts they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by
Consultant.
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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. No
civil service status or other right of employment shall accrue to Consultant or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees
of City. Consultant shall have the responsibility for and control over the means of
performing the Work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Consultant as to the details of the performance of the Work or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
RS Acoustics Inc. Page 5
be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint- venture or syndicate or co- tenancy, which shall result in changing
the control of 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
orjoint- venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. City is an intended beneficiary
of any Work performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and City. Except as specifically authorized herein, the
Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced, including but not limited to, websites, blogs, social media accounts
and applications (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Additionally, all material posted in
cyberspace by Consultant, its officers, employees, agents and subcontractors, in the
course of implementing this Agreement, shall become the exclusive property of City,
and City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents, including all logins and password information to City
upon prior written request.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant, and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
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17.3 All written documents shall be transmitted to City in formats compatible
with Microsoft Office and /or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including
costs, contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
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borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), 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.
24.2 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.
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first -
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Makana Nova, Assistant Planner
Community Development Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Robert Schmidt
RS Acoustics Inc.
15751 Beaver Run Road
Canyon Country, CA 91387
RS Acoustics Inc. Page 8
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
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28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S FFICE
Date:
By:
Aaron C. Orp
City Attorney
ATTEST: /I�
Date: 7 �'
By:
Leilani I. Brown
City Clerk ®®
FAJ07.
CITY OF NEWPORT BEACH,
a California municip I corporation
Date:
By:
Kimberly Brandt, AICP
Community Development Director
CONSULTANT: RS Acoustics Inc., a
California corporation
Date: ieo (4--
•
Principal Consultant / Treasurer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
RS Acoustics Inc. Page A -1
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RS ACOUSTICS INC
15751 Beaver Run Road
Canyon Country, CA 91387
P:(661)251 -3965
F:(661)310 -3783
3 March 2014
Makana Nova, Assistant Planner, AICP
Planning Division /Community Development Department
Cgrof Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
SUBJECT: 3- Thirty -3 Waterfront Restaurant
Proposal for Acoustical Consulting Services
RSA Proposal No. 12011311-7
Dear Makana:
Pursuant to your request, we are pleased to provide this proposal for acoustical consulting services
in connection with the 3- Thirty -3 restaurant located at 333 Bayside Drive, Newport Beach
California. This proposal is based on the directives given in our telephone conversations,
conference in your office, emails, review of the RFP, drawings, and documents forwarded to us, and
our experience with many similar projects.
The main restaurant building is located immediately adjacent and parallel to the coast with a
nominal 28' x 25' exterior dining patio attached to the south face of the main building. It is our
understanding that the patio is used only for typical dining activities and that the owner desires to
extend the hours of the operational use of the patio which include background dining music. Live
entertainment is not permitted on the outdoor patio. We also understand that work has already
been completed on the patio enclosure to help reduce noise levels experienced in the surrounding
community.
As noted in Exhibit A of the project Conditions of Approval excerpted below, the City of Newport
Beach requires that the construction of the patio "envelope" provide the same level of sound
attenuation as is provided by the main building.
Summarizing item 4.a. of the project Conditions of Approval:
Require the outdoor dining patio to be attenuated to the some sound level
as the main restaurant building when all exterior openings are closed.
In concurrence with our conference, we interpret this to mean that the patio building envelope will
provide sufficient attenuation of patio generated noise to a level that the exterior measured noise
levels are not increased by use of the patio.
Consultants in Architectural Acoustics & Noise Control
Makana Nova, Assistant Planner, AICP
Planning Division /Community Development Department
Page 2
In general, the summarized scope of work requested is as follows:
• Determine the exterior noise levels currently experienced due to playback of recorded
music, patrons dining, and live music performance within the main restaurant to establish a
baseline for comparison.
• Provide recommendations for the patio so that the exterior noise levels due to patio activity
do not exceed those measured for the main restaurant building. We understand that the
patio will not to have live music performances.
• Document the existing construction of the existing restaurant and patio structures.
• Provide quarterly monitoring within the community of noise associated with
restaurant /patio activity.
RSA is staffed to begin work immediately following receipt of your written authorization to proceed.
The following letter sections describe the anticipated Scope of Work and Cost of Consulting Services
we propose to provide.
SCOPE OF WORK
To determine the existing noise levels as well as attenuation provided by the exterior wall
assemblies, we propose to provide the following services:
ACOUSTICAL TESTS
INTERIOR SOUND LEVEL MEASUREMENTS
To document and verify the interior source noise levels occurring at the premises, we will perform
the following acoustical tests:
In the main restaurant we will conduct tests to determine the sound levels throughout
the public areas during peak hours when sound levels are highest. This will include the
amplified music levels as well as patron noise.
From our conference at your offices, it is our understanding that live music
performances in the main restaurant do not regularly occur, nor are they planned for in
the future, however the restaurant may be allowed to host live performances based on
the Conditional Use Permit with the Clty. In order to gather sound level data from
potential live music performances, the owner has agreed to supply live musical
entertainment during our site visit. We will measure the noise levels generated during
the performance within the restaurant.
We will also conduct acoustical tests to document the sound levels within the patio
dining area during a peak dining time. We anticipate sound levels in the patio to be
generated only from diner conversations and background music which we understand
to be of relatively low level.
Makana Nova, Assistant Planner, AICP
Planning Division /Community Development Department
Page 3
EXTERIOR SOUND LEVEL MEASUREMENTS
To document and verify the exterior noise levels, we will conduct the acoustical tests discussed
below. We are currently unaware however of the present acoustical levels at these residential properties.
Noise studies conducted by others for residential properties at 102 and 104 Linda Isle which are on -file with the
City of Newport Beach were conducted in 2006 and 2007. As the noise levels at the residences presented in the
report are now eight (8) years old, we propose to re- measure the current nighttime ambient noise level
conditions as follows:
1. At a residence which is close to, and having direct line -of -sight to the 3- Thirty -3
restaurant and patio, (preferably 102 or 104 Linda Isle if possible) we will measure the
noise levels in the nighttime hours documenting the conditions when the restaurant and
patio are operating at peak conditions. This measurement will not include live music
performances in the main restaurant. At all exterior noise level measurements, we will
also measure and document any offsite, or unusual noise sources such as traffic,
aircraft, motorcycles, noise from adjacent establishments, etc.
2. The same test procedure will be conducted again at the residential property, this time
with the patio shut down. From this test we can determine the noise levels produced
only by typical peak time use of the main restaurant. From this data, we will be able to
mathematically extrapolate the patio generated noise only allowing us to determine the
contribution of the patio activity to the overall ambient noise level environment.
3. The third measurement will also be conducted at the residences with live music
performances in the main restaurant and the patio operational. We anticipate this to be
the "worst case" scenario and compared to the City of Newport Beach noise ordinance
to determine compliance.
4. The fourth measurement will also be conducted at the residences with live music
performances in the main restaurant and the patio shut down and closed to patrons.
This will provide a baseline sound level forjust the restaurant with live music.
5. At our discretion, we may elect to conduct measurements in the near -field of the
restaurant (possibly on the boat docks adjacent to the restaurant) if deemed necessary
for engineering purposes.
We are budgeting in this proposal to conduct the above annotated measurements during the same
site visit. If a second site visit is required to complete the measurements for reasons beyond our
control, it will be billed at the rates shown in the Cost of Consulting Services section below.
EXISTING CONDITIONS DOCUMENTATION
Per your request and the verbiage in Item 4.a of the project Conditions of Approval, we will
document the existing main restaurant and patio building envelope constructions. This
requires gathering the following information while on site:
MAIN BUILDING
• Determine construction materials including interior and exterior finishes, stud size and
type, and insulation and total area of the exterior wall.
Makana Nova, Assistant Planner, AICP
Planning Division /Community Development Department
Page 4
• Determine the glazing type, thickness, and total area of windows and doors.
• Take note of and document and any other currently unforeseen elements of the wall
assembly.
• Determine construction of the ceiling /roof assembly at the main building. This would
require fairly close access to the roof above any suspended ceiling (if any).
• Review any architectural plans of this building if available.
PATIO
• Closely inspect the roof system of the patio, the materials, and methods of attachment
and "airtightness' or acoustical sealing of the panels
• Determine the construction of the solid and glazed areas of the patio walls having an
exterior exposure. This includes the glass type, the glass frame and gasketing utilized in
the frames.
• Inspect the "sound barrier' wall panel materials and integrity or quality of the acoustical
sealing of their installation.
III. RECOMMENDATIONS
If the noise levels measured at the residences show that noise from the patio does not
increase or mathematically contribute to the main restaurant noise levels, we will prepare a
report of our findings for submittal to the City. The report will include the noise reduction
provided by the patio and main building assemblies, material descriptions, photos, and
sketch drawings as required to convey our findings.
If the noise levels measured at the residences are found to be higher with the patio
operating, we will provide recommendations for corrective measures for the construction of
the patio envelope so that the design criterion is not exceeded by operation of the patio.
Noise control recommendations could include modifying or supplementing the existing glass
or polycarbonate panels at the walls, modifying the roof panels or their method of
attachment to help ensure an acoustical seal at their perimeter, and provide the detailing
required to make the construction systems perform well acoustically.
Recommendations are typically provided in teleconference, or report form with sketch
drawings as necessary to convey our design intent. RSA Inc. does not prepare contract
documents directly. We will also provide technical performance specifications for all
methods and materials recommended for acoustics and noise control.
Should the owner elect to implement the recommended corrective measures for increasing
the sound attenuation of the patio, we would be pleased to provide construction
administration services which would be billed separately as additional services. Such work
however is not budgeted for in this agreement.
IV. QUARTERLY COMMUNITY MEASUREMENTS
To satisfy paragraph 4.b. of the project Conditions of Approval, we will provide the following
environmental monitoring services:
Conduct quarterly site measurements to verify that the noise levels generated by the
restaurant and patio satisfy the city codes. Measurements will occur between the
Makana Nova, Assistant Planner, AICP
Planning Division /Community Development Department
Page 5
nighttime hours of 10:00 p.m. and 1:00 a.m. on a Thursday, Friday, or Saturday night as
stipulated in item 4.b. of the Conditions of Approval. Measurements would be
completed over the next calendar year with one occurring in the month of August.
Following each measurement program, we will prepare and submit a written report
presenting the acoustical measurement locations, measurement results, and the actual
conditions occurring during the tests. All measurements will be conducted with a
precision Type 1 sound level meter which meets the requirements for noise
measurements set forth by the City of Newport Beach noise ordinance.
We are budgeting to attend one City of Newport Beach Planning Commission Review
meeting to discuss measurement results.
V. OUT -OF- OFFICE WORK
We are budgeting for the following out -of -off ice work
• One (1) nighttime /early morning site visit to inspect and measure the existing restaurant
conditions. (Second site visit shown as separate line item if required).
• Four (4) site visits quarterly to measure the noise levels in the community.
• Attendance at one (1) meeting with the City of Newport Beach Planning Commission.
Out of office or site visits work beyond these must be considered additional services billed
hourly at the rates shown in the attached Terms and Conditions.
EXHIBIT B
SCHEDULE OF BILLING RATES
RS Acoustics Inc. Page B -1
COST OF CONSULTING SERVICES
RS Acoustics Inc. professional fees are based on the number of hours worked on a project and our
services and payment schedule are subject to the enclosed Terms and Conditions which are
considered an integral part of this agreement. We have carefully considered the extent of services
that this project requires, balanced that with our experience with similar projects, and anticipate
the fees for professional services as follows:
A. Site visit, acoustical tests, in- office work, preparation
and submittal of acoustical report annotated above: $4,200
Analysis of data and preparation of noise control
recommendations if patio noise levels are found excessive: $1,200
B. Second site visit to 333 restaurant to complete
measurement program per Sections I and II if required for
reasons beyond our control. Estimated 7 man -hours total: $1,190
C. Quarterly acoustical measurements conducted near the
restaurant per item 4.b. of the Conditions of Approval: $6,200
D. Attendance of one (1) Planning Commission Review meeting
(Includes in -office preparation time & materials): $1,600
D. Charges
RSA will charge hourly fees according to this schedule:
Principals: $170
Senior Consultants: $145
Technical Assistants: $125
Drafters /Clerical $100
Time spent in travel during normal business hours will be charged as time worked.
E. Reimbursable Expenses
RSA will charge for reimbursable expenses at cost plus 10 %. Reimbursable expenses include
travel, subsistence, overnight mail, oversize plotting, special supplies or materials, and
instrumentation -use charges.
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, one million dollars ($1,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract) with
no endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage .for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
RS Acoustics Inc. Page C -1
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its 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
from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City and its officers, officials, employees, and agents shall be included
as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self -
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
RS Acoustics Inc. Page C -2
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non - compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. 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.
E. Self- insured Retentions. Any self- insured retentions must be declared to
and approved by City. City reserves the right to require that self- insured
retentions be eliminated, lowered, or replaced by a deductible. Self -
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non - Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Consultant's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
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