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HomeMy WebLinkAboutC-5913 - PSA for Coastal Representation of the Proposed Eelgrass Protection and Mitigation Plan10, k5 AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. FOR COASTAL REPRESENTATION OF THE PROPOSED EELGRASS PROTECTION AND MITIGATION PLAN THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Two") is made and entered into as of this 26th day of November, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SCHMITZ & ASSOCIATES, INC., a California corporation ("Consultant"), whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California 90265, and is made with reference to the following: RECITALS A. On June 30, 2014, City and Consultant entered into a Professional Services Agreement ("Agreement") to engage Consultant to provide California Coastal Commission application support services for the City's proposed Eelgrass Protection and Mitigation Plan ("Project"). B. On May 15, 2015, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to reflect additional services not previously included in the Agreement, and to increase the total compensation. C. City desires to enter into this Amendment No. Two to reflect additional Services not included in the Agreement, as amended, and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A to the Agreement, Exhibit A to Amendment No. One, and Exhibit A to this Amendment No. Two shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 2. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be supplemented to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). Exhibit B to the Agreement, Exhibit B to Amendment No. One and Exhibit B to Amendment No. Two shall collectively be known as "Exhibit B." Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a time and expense not-to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Eighteen Thousand One Hundred Three Dollars and 851100 ($118,103.85), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. Two, including all reimbursable items and subconsultant fees, in an amount not to exceed Eleven Thousand Seven Hundred Thirty Four Dollars and 35/100 ($11,734.35). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Schmitz & Associates, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: I1 By: Aaron C. arp 0I'M %Nh-q« City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk sc1 Fop -!:d CITY OF NEWPORT BEACH, a California municipal corporation Date: v?4:1 I By:� Dave Kifr City Manager CONSULTANT: Schmitz & Associates, Inc., a California corporation Date: By: Signed in Counterpart Donald W. Schmitz II, AICP Chief Executive Officer and Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Schmitz & Associates, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICI 2�� I - c Aaron C—Harp (kM ,�izUr City Attorney ATTEST: Date: In Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: Dave Kiff City Manager CONSULTANT: Schmitz & Associates, Inc., a California corporation Date: r 1i � 9 y j golz �— -I C By: Donald W. Schmitz II, AICP Chief Executive Officer and Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates CNB Pu':�',ic Warks Now 2 5 2015 Receove_d Schmitz & Associates, Inc. Page 3 EXHIBIT A SCOPE OF SERVICES Schmitz & Associates, Inc. Page A-1 October 6th, 2015 City of Newport Beach Attn: Dave Kiff, City Mgr. Attn: Chris Miller, Harbor Resources Mgr. 100 Civic Center Drive Newport Beach, CA 92660 SENT VIA EMAIL CORRESPONDENCE & US MAIL Re: Newport Beach Amendment to Scope of Services & Budget Mssrs. Kiff and Miller: Our firm was retained by the City of Newport Beach to provide land use and Coastal Commission Consulting services to assist the City in obtaining the Coastal Development Permit needed to implement the Regional General Permit (RGP) for annual dredging activities in Lower Newport Harbor. Our office has been actively engaged in carrying out the work scope agreed to in our services agreement with the City. At this time we have completed phases I thru IV of said agreement and have obtained the requisite approvals from the California Coastal Commission. The purpose of this correspondence is to request approval from the City Manager to expand our work scope and contract amount in contemplation of additional work ("Extra Work") that is required of our firm to successfully complete our work and facilitate the entitlements. Our original agreement and one supplemental amendment with the City specified that we would provide land use consulting and permit processing services (as listed) on a time and materials basis in an amount not to exceed $106,369.50. Lobbying, preparation for, and attendance at the Coastal Commission hearing took more time than expected due to various reasons. These reasons include, but are not limited to the coastal commission staff, whom shortly before the hearing, requiring mitigation of natural fluctuations of the Eel Grass Beds in the harbor. This would have exposed the city to a potentially massive and unacceptable financial liability. Additionally, there is remaining condition compliance work to be completed and we need to obtain the actual permits. Last, there will be a limited amount of time required for addressing and responding to the Army Corp's concerns. MAC1811 FIC - HFADQUARTFRS CONFJOVAUFYOFRCF - RFGI0RIA,1 SCHMITZ &ASSOCIATES INC 74350 PACIFIC CCAS' HIGHWAY SUITE 12 5234 CHESEBRC ROAD SUITE 200 MALIBU, CA 40265 AGOURA HILLS, CA 9030) PROVIDERS OF LAND USE PLANNING MAIN: 310.589.0773 FAX: 310.589.0353 MAIN: 878.338.3636 FAX. R 18.338.1342:1 FOR A BETTER COMMUNITY EMAIL:INFOOSCHMITZ.ANL)ASSOCIATES.NET WEBSITE:WWW.SCHMITZANDASSOCIATES. CC Pursuant to previous discussions with Mr. Miller and City Staff we are requesting that our scope of work and contract amount be augmented to address the additional work required in accordance with Paragraph 4 of our Agreement. The following is a summary of the services yet to be performed and the additional contract amount which we are requesting authorization for: MODIFIED WORK SCOPE AND CONTRACT AMOUNT Original Budget for scope of services = T&M NTE $71,250 Amendment #1, 7.17.2015 = T&M NTE $106,369.50 Total Billing to date (as of 7.22.15) = $106,103.85 Amount remaining in current Budget + $265.65 (CR) Remaining Work to be Completed as of July 23rd 2015 • Ongoing CCC Condition Compliance and Acquisition of Permits: $6,000.00 to $8,000.00 • Ongoing Coordination & Meetings with Army Coros• $2,000.00 to $4,000.00 Total Budget for Remaining Work = Range between $8,000.00 - $12,000.00 [$12,000.00 (high end) - $265.65 (Credited amt. remaining in budget)= $11,734.35 Increase in budget needed. Amendment to Existing Services Agreement to Increase Payment NTE Limit for Services Rendered from $106,369,50 to $118,103.85 Please don't hesitate to contact us with any questions or comments that you might have regarding this request or hearing preparations in general. Sincerely, Donald W. Schmitz II / President / A LC.P MALlBU OFFICE - HEADQUARTERS CONEJO VALLEYOFFIGE - REC3tCJNA. SCHMITZ $ASSOCIATES INC 29350 PACIFIC C JASI HIGHWAY SUITE 12 5'234 CHESEBPO ROAD SUTU 200 MALlBU, CA 90265 AGOURA HILLS. CA 90301 PROVIDERS OF LAND USE PLANNING MAIN: 3:0.589;1773 FAX: 310.589.0353 MAIN: 818.338.3636 FAX: 818.338.3423 FOR A BETTER COMMUNITY EMAI L:INFC@SCH MaZANOASSOCI ATES, NET WEBSI(E:WWW SCHMITZANDASSCCfATES.CC Headquarters: 29350 West Pacific Coast Highway, Suite 12 Malibu, CA 90265 Coll: (310) 617-0773 1 Office: (310) 589-0773 1 Fax: (310) 589-0353 Conejo Valley Office: 5234 Chesebro, Road, Suite 200 Agoura Hills, CA 91301 Cell: (310) 617-0773 1 Office: (818) 338-3636 1 Fax: (818) 338-3423 DonS@schmitzandassociates.net I www.schmitzandassociates.coml www,facebook.com SCHMITZ & ASSOCIATES, INC 24361.; PACIA"' COAST HIGHWAY SWTE 12 5234 CiiESEBRO ROAD SUITE 200 MIAUBU, CA 90265 AGWIPA HLB, CA W301 PROVIDERS OF LAND USE PLANNING M.AW 310589"0?73 FAX: 310.589.0353 MAIN; 818.3v5.3b3b FAX: 818.13&,1423 FOR A RETTER COMMUNITY EtAAiL:INFO�aSt:FtMIIZANDA6zSOCIATES,NET WLt3SIIE:WWW.SCtiMiTZANDASSCsCiA'ES.CC EXHIBIT B SCHEDULE OF BILLING RATES Schmitz & Associates, Inc. Page B-1 W4:Il]li? SCHEDULE OF BILLING RATES AMENDMENT NO. TWO— COASTAL REPRESENTATION FOR PROPOSED EELGRASS PROTECTION AND MITIGATION PLAN In order to continue to assist the City in obtaining the Coastal Development Permit needed to implement the Regional General Permit (RGP) for annual dredging activities in Lower Newport Harbor, the following services and fees are added: • Ongoing California Coastal Commission Compliance and Acquisition of Permits: • Ongoing Coordination & Meetings with Army Corps: - $4,000.00 Subtotal: $12,000.00 Credited amount remaining in budget: -$265.65.00 TOTAL: $11,734.35 AMENDMENT NO. ONE TO V PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. FOR COASTAL REPRESENTATION OF THE PROPOSED EELGRASS PROTECTION AND MITIGATION PLAN THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 15th day of May, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and SCHMITZ & ASSOCIATES, INC., a California corporation ("Consultant"), whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California 90265, and is made with reference to the following: RECITALS A. On June 30, 2014, City and Consultant entered into a Professional Services Agreement ("Agreement") to provide California Coastal Commission application support services for the City's proposed Eelgrass Protection and Mitigation Plan ("Project"). B. City desires to enter into this Amendment No. One to reflect additional Services not included in the Agreement and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A to the Agreement and Exhibit A to Amendment No. One shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 2. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be supplemented to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). Exhibit B to the Agreement and Exhibit B to Amendment No. One shall collectively be known as "Exhibit B." Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Six Thousand Three Hundred Sixty Nine Dollars and 50/100 ($106,369.50), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Thirty Five Thousand One Hundred Nineteen Dollars and 50/100 ($35,119.50). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Schmitz & Associates, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RNEY'S OFFICE Date: � 145 Aaron C. Harp ow o(aioa-j►s City Attorney ATTEST: -741/5 Date: By: - 44----- Leilani I. Brown City Clerk '%. +_)!7 N t P CITY OF NEWPORT BEACH, a California municipal corporation Date:-11sA1S By: Dave City Manager CONSULTANT: Schmitz & Associates, Inc., a California corporation Date: By. � -- Donald W. Schmitz II, AICP Chief Executive Officer and Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Schmitz & Associates, Inc. Page 3 Schmitz & Associates, Inc. Page A-1 April 27, 2015 City of Newport Beach Attn: Dave Kiff, City Mgr. Attn: Chris Miller, Harbor Resources Mgr. 100 Civic Center Drive Newport Beach, CA 92660 SENT VIA EMAIL CORRESPONDENCE & US MAIL Re: Newport Beach Amendment to Scope of Services & Budget Mssrs. Kiff and Miller: Our firm was retained by the City of Newport Beach to provide land use and Coastal Commission Consulting services to assist the City in obtaining the Coastal Development Permit needed to implement the Regional General Permit (RGP) for annual dredging activities in Lower Newport Harbor. Our office has been actively engaged in carrying out the work scope agreed to in our services agreement with the City. At this time we have completed phases I and II of said agreement and have completed most of our work on Phase III and are currently preparing for the Coastal Commission Hearing. The Coastal Commission hearing for the project is tentatively scheduled locally in Newport's City Council Chambers from June 10-12, 2015. The purpose of this correspondence is to request approval from the City Manager to expand our work scope and contract amount in contemplation of additional work ("Extra Work") that is required of our firm to successfully complete our work and facilitate the entitlements. Our original agreement with the City specified that we would provide land use consulting and permit processing services (as listed) on a time and materials basis in an amount not to exceed $71,250. Since project inception, matters with the Coastal Commission have become significantly more complex than originally contemplated leading to the need for additional work and coordination being undertaken outside the scope contemplated in our agreement. Such additional services include: 1) A substantially larger time commitment to Coastal Commissioner meetings and discussions with staff than originally contemplated; 2, Arrangements related to the planning of a Coastal Commissioner Field Trip and tour of the harbor and eel grass beds; 3. Expanded preparations for hearing and hearing presentation efforts and; 4. Additional costs associated with travel expenses arising from the aforementioned additional meetings and processing efforts. SCHMITZ & ASSOCIATES, INC ` PROVIDERS OF LAND USE PLANNING FOR A BETTER COMMUNITY A ;,, Pursuant to previous discussions with Mr, Miller and City Staff we are requesting that our scope of work and contract amount be augmented to address the additional work required in accordance with Paragraph 4 of our Agreement. The following is a summary of the services yet to be performed and the additional contract amount which we are requesting authorization for: MODIFIED WORK SCOPE AND CONTRACT AMOUNT Original Budget for scope of services = T&M NTE $71,250 Total Billing to date (as of 3.23.15) = $65,757 Amount remaining in current Budget+ $5,493 (CR) Remaining Work to be Completed as of March 23 2015 .:oortlmation with Coastal Staft until hearing (3.23.15- 6.10.15): 7-10 hours per month for 2.5 months= $5,687.50 - $8,125 • Ongoing Coordination & Meetings with Newport City staff, Committees Council Members regarding Project Status & Strategy Proceeding Forward (3.2-3.15 - 6.10.15): 5-7 hours per month @325/hr= $1625 - $2275; Total = $4062.50 - $5,687.50 • Hearing Preparations (5.25.15 -6J0.15): $2,475 - PowerPoint Preparation: 45 Hours @ I35/hr= $6,075 -Review Staff Report & Prepare Response to CCC Staff: 10-15 hours @ 165thr= 1,650- - Don Schmitz Ex Parte Budget (Meetings w All Commissioners)= $15,000 a Hearing Representation: Flat Fee for Out of Town Hearings= $3250 Total Budget for Remaining _Work = Range between $35,725 - $40,612,50 [40,612.50 (high end) - $5,493 (Credited amt. remaining in budget)= $35,119.50 Increase in budget needed. Amendment to Existing Services Agreement to Increase Payment NTE Limit for Services Rendered from $71,250 to $106,369.50 SCHMITZ & ASSOCIATES, INC PROVIDERS OF LAND USE PLANNING FOR A BETTER COMMUNITY Please don't hesitate to contact us with any questions or comments that you might have regarding this request or hearing preparations in general. Sincerely, { Donald W. Schmitz II / President / A.I.C.P. Headquarters: 29350 West Pacific Coast Highway, Suite 12 Malibu, CA 90265 Cell: (310) 617-0773 1 Office: (310) 589-0773 1 Fax: (310) 589-03.53 Conejo Valley Office: 5234 Chesebro Road, Suite 200 Agoura Hills, CA 91301 Cell: (310) 617-0773 1 Office: (818) 338-3636 1 Fax: (818) 338-;423 fiear xn Of Eald We ftr>OA MnS@schmitzandassociates.net I www.schmitzandassociates.coml www.facebook.com SCHMITZ & ASSOCIATES, INC PROVIDERS OF LAND USE PLANNING, FOR A BETTER COMMUNITY Schmitz & Associates, Inc. Page B-1 EXHIBIT B SCHEDULE OF BILLING RATES AMENDMENT 1— COASTAL REPRESENTATION FOR PROPOSED EELGRASS PROTECTION AND MITIGATION PLAN In order to continue to assist the City in obtaining the Coastal Development Permit needed to implement the Regional General Permit (RGP) for annual dredging activities in Lower Newport Harbor, the following services and fees are added: • Ongoing Coordination with Coastal Staff until hearing: - $8,125 • Ongoing coordination and meetings with City Staff, Committees, Council regarding Project status and strategy moving forward: - $5,687.50 • Hearing Preparations: • PowerPoint Preparation: - $5,075 • Review Staff Report & Prepare Response to CCC Staff: - $2,475 e Don Schmitz Ex Parte Budget (Meetings w All Commissioners): - $15,000 • Hearing Representation: - $3,250 Subtotal: $40,612.50 Credited amount remaining in budget: -$5,493.0 TOTAL: $35,119.50 PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. FOR COASTAL REPRESENTATION OF THE PROPOSED EELGRASS PROTECTION AND MITIGATION PLAN THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 30th day of June, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SCHMITZ & ASSOCIATES, INC., a California corporation ("Consultant"), whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, CA 90265, 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 California Coastal Commission application support services for the City's proposed Eelgrass Protection and Mitigation Plan ("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: The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2016, 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 Seventy One Thousand Two Hundred Fifty Dollars and 001100 ($71,250.00), 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. Schmitz & Associates, Inc. Page 2 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not 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 Christopher M. Deleau 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 Public Works Department. City's Harbor Resources Manager 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 Schmitz & Associates, Inc. Page 3 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. 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 Schmitz & Associates, Inc. Page 4 limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of 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. Schmitz & Associates, Inc. Page 5 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Schmitz & Associates, Inc. Page 6 Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 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. Schmitz & Associates, Inc. Page 7 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 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. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Chris Miller, Harbor Resources Manager Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 Schmitz & Associates, Inc. Page 8 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Christopher M. Deleau Schmitz & Associates, Inc. 29350 Pacific Coast Hwy, Suite 12 Malibu, CA 90265 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. Schmitz & Associates, Inc. Page 9 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach 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. Schmitz & Associates, Inc. Page 10 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] Schmitz & Associates, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 6 —1 I Li By: Aaron C. Harp City Attorney ATTEST: G--/ Date: '" �J By: 4 /'o eilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California muni ipal,cprporation Date: 71 ' '�"I By: David A. Webb Public Works Director CONSULTANT: Schmitz & Associates, Inc., a California corporation Date: By: r Donald W. Schmitz II, AICP Chief Executive Offices and Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements esrv®eosn�n®ate -- nmamm�amnonomcxminamnanrnnm®nn�m®mwnn�n Schmitz & Associates, Inc. Page 12 EXHIBIT A SCOPE OF SERVICES Work Plan and Estimate for Coastal Representation of the proposed Eelgrass Protection and Mitigation Plan (EPMP) May 1, 2014 Prepared by Schmitz & Associates, Inc. for the City of Newport Beach Estimate Phase I: Due Diligence: Comprehensive $14,000 understanding of the EPMP required to effectively advocate before the CCC, and assistance at local hearings: 1) Review and analysis of all relevant project documents - including but not limited to City staff reports, Planning Commission and City Council hearing transcripts from the HAMP adoption, technical reports, project surveys and plans, reviewing agency comment letters, codes, regulations, cases, etc. 2) Communications with Project's technical consultants as required while completing review of their technical documents and plans. 3) Communications/Meetings with City officials and staff as necessary 4) One meeting with CCC Senior Staff and other stakeholders to preliminarily discuss issues raised in their comment letters; these discussions will aid us in the preparation of the CCC application as well as in future negotiations with Staff. 5) Should the city request our presence we will attend planning commission and city council hearings should they be deemed necessary. This service expense is not included in the budget for Phase I unless we are directed otherwise, but it is recommended. Phase II: CCC Application Preparation $6,000 Assist City staff with preparation of CCC application. Note -Historically the City has relied heavily on us to prepare the applications, but should the city wish to be the laboring oar our role and cost for this work can be significantly reduced. Schmitz & Associates, Inc. Page A-1 Phase III: CCC Application Processing/Advocacy with Staff*" $14,500 1) Meetings/Communications with CCC Senior Staff just prior to submittal of CCC Application 2) Meetings/Communications with CCC staff to respond to any incompletion letters issued and address any questions raised subsequent to application submittal. Work with City staff to prepare supplemental project analysis and information in support of project as appropriate to respond to Coastal staff issues. Also, work closely with Coastal staff to ensure expeditious processing of application. 3) Meetings/Communications with CCC staff to advocate for favorable recommendations and special conditions in their Staff Report. Review staff report upon issuance and coordinate with Staff on any areas of concern. Concurrent meetings/communications with City of Newport Beach staff and technical consultants as required. Phase IV: CCC Application Hearing Preparation and Representation 1) Preparation of Presentation Materials $12,500 (PowerPoint, Exhibits/Handouts for Commissioners, etc.) in Support of Project for CCC Hearing. 2) Communications/Meetings with Coastal $15,000 Commissioners*** in advance of Hearing to advocate project. 4) Review and assess any adverse $6,000 comment letters received prior to hearing and prepare additional presentation materials to rebut any opposition (estimate & exclusive of total) .**** 5) Representation of Project at Coastal $3,250 Hearing by Don Schmitz.***** Total: $71,250 Schmitz & Associates, Inc. Page A-2 EXHIBIT B SCHEDULE OF BILLING RATES Consultant's Fees and Hourly Rates. Our billing practice is to charge for services based primarily on the amount of time, including travel time, devoted to a matter at hourly rates for the particular professional consultants' involved. These hourly rates are based upon the particular consultant's experience, expertise and standing. The hourly rates are as follows: President $325.00 Regional Manager $195.00 Special Projects Manager $175.00 Senior Planner $150.00 Associate Planner $130.00 Planning Technician $ 95.00 These rates and job titles are modified by us from time to time and shall be implemented immediately. A flat fee of $3,250.00 is charged for "representation only" at California Coastal Commission hearings, and other out-of-town hearings. The flat fee does not include preparation for the hearing (i.e. review of documents and staff reports, lobbying, preparation of graphics and written materials) or costs (i.e. airfare, hotel and rental car). Additional Services and Outside Expenditures. We may provide additional services in- house in connection with our services. These in-house services typically include photocopying, computerized research, facsimile services, long distance telephone, postage, plotting, and small field expenses such as mileage, parking, lodging and the like. Our practice is to bill these services to you directly at our usual and customary rates. Our services may also involve additional services provided by third party vendors and particular professionals outside of the firm. You will be required either to pay for these outside additional services directly, or to reimburse us if we make payment for these services on your behalf. We sometimes will make payment for, and then bill you for reimbursement of smaller items such as filing fees, photocopying/document reproduction, recording fees, federal express and messenger services. While we do have licensed attorneys who work for us as Land Use Planners, we are not a law firm and we cannot provide legal services, advice, or engage in attorney-client relationships. Thus, any and all communications made verbally or otherwise to us shall not be protected by the attorney-client privilege unless we are retained as litigation consultants in which case you should consult with your attorney handling the case with respect to the extension of this privilege to us as litigation consultants. Schmitz & Associates, Inc. Page B-1 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 Schmitz & Associates, Inc. Page C-1 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 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 Schmitz & Associates, Inc. Page C-2 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. 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. Schmitz & Associates, Inc. Page C-3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 8/11/14 Dept./Contact Received From: Raymund Date Completed: 8/15/14 Sent to: Raymund By: Chris Company/Person required to have certificate: Schmitz & Associates, Inc. Type of contract: All Other I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 8/15/14-8/15/15 A. INSURANCE COMPANY: Farmers Insurance Company B. AM BEST RATING (A-: VII or greater): A; XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? $2,000,000 / $4,000,000 E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must (What is limits provided?) include): Is it included? (completed Operations status does F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND G. HIRED AND NON -OWNED AUTO ONLY: COMPLETED OPERATIONS ENDORSEMENT (completed H. NOTICE OF CANCELLATION: Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 8/15/14-8/15/15 A. INSURANCE COMPANY: Farmers Insurance Company B. AM BEST RATING (A-: VII or greater) A; XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $2,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ® Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 11/1/13-11/1/14 A. INSURANCE COMPANY: State Fund B. AM BEST RATING (A-: VII or greater): Not rated C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) $1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: a;zl:5 Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 8/15/14 Date ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Approved: Risk Management Date " Subject to the terms of the contract.