HomeMy WebLinkAboutC-7904-1 - PSA for Environmental Services for the Residences at 4400 Von KarmanU
PROFESSIONAL SERVICES AGREEMENT
WITH KIMLEY-HORN AND ASSOCIATES, INC. FOR
ENVIRONMENTAL SERVICES FOR THE RESIDENCES AT 4400 VON KARMAN
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and
entered into as of this 15th day of June, 2020 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
KIMLEY-HORN AND ASSOCIATES, INC., a North Carolina corporation ("Consultant'),
whose address is 765 The City Drive, Suite 200, Orange, California 92868, 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 environmental services for the
Residences at 4400 Von Karman ("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:
TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2021, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform
Services attached hereto as Exhibit A and
or "Work"). City may elect to delete certain
sole discretion.
3. TIME OF PERFORMANCE
all the services described in the Scope of
incorporated herein by reference ("Services"
Services within the Scope of Services at its
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 One Hundred Nineteen
Thousand Six Hundred Fifty Dollars and 00/100 ($119,650.00), 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 not
reasonably anticipate would be necessary at the execution of this Agreement.
Kimley-Horn and Associates, Inc. Page 2
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 Dana C. Privitt, AICP to be
its Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
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 Deputy Community Development Director 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 community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. 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
Kimley-Horn and Associates, Inc. Page 3
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 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.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, 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 Except as provided in Section 9.2, to the fullest extent permitted by law,
Consultant shall indemnify, defend and hold harmless City, its City Council, boards and
commissions, officers, agents, volunteers, employees and any person or entity owning or
otherwise in legal control of the property upon which Consultant performs the Project
and/or Services contemplated by this Agreement (collectively, "Indemnified Parties 1")
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, Claim 1; or collectively, "Claims 1 "), 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 For the portion of the work covered under the Transportation Assessment,
Hydrology and Water Quality, and Utilities Analysis (as part of the Public Services,
Facilities, and Utilities task) sections of the Scope of Work, to the extent the work requires
design professional services, as defined in Civil Code Section 2782.8(c), Consultant
agrees that, 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 2"), 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, Claim 2; and collectively, "Claims 2"), which relate (directly or indirectly) to
Kimley-Horn and Associates, Inc. Page 4
the negligence, recklessness, or willful misconduct of Consultant or its principals, officers,
agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone
employed directly or indirectly by any of them or for whose acts they may be liable, or any
or all of them.
9.3 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim 1 or 2 arising from the
sole negligence, active negligence or willful misconduct of Indemnified Parties 1 or 2.
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 the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. 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.
Kimley-Horn and Associates, Inc. Page 5
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 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.
Kimley-Horn and Associates, Inc. Page 6
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.
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
Kimley-Horn and Associates, Inc. Page 7
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 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") and/or Government Code §§ 1090 et
sea., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. 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: Deputy Community Development Director
Community Development Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
Kimley-Horn and Associates, Inc. Page 8
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Dana C. Privitt, AICP
Kimley-Horn and Associates, Inc.
765 The City Drive, Suite 200
Orange, CA 92868
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.
Kimley-Horn and 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 Egual 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 race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
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.
Kimley-Horn and 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]
Kimley-Horn and 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: -] / '1';z4jV
By:
-13jfAaron C. arp K� 7,24,U
City Attoi ey
ATTEST:
Date: u"0�
W -11h,: .,a
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 7-12-2-0
By:&�
Grace K. Leung
City Manager
CONSULTANT: Kimley-Horn and
Associates, Inc., a North Carolina
corporation
Date:
Signed in Counterpart
Brian R. Gillis
Vice President
Signed in Counterpart
By:
Chad E. Phillips
Vice President
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rate:
Exhibit C - Insurance Requirements
Kimley-Horn and Associates, Inc. Page 12
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:
B : �_'
,4aro . Harp
City ttorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
In
Grace K. Leung
City Manager
CONSULTANT: Kimley-Horn and
Associates, Inc., a North Carolina
corporation
Date: Oq OV
By:
Brian R. Gillis'/ C- .1 X 30 2(
Vice President /
Date:
Chad E. Philips
Vice President
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Kimley-Horn and Associates, Inc. Page 12
EXHIBIT A
SCOPE OF SERVICES
Kimley-Horn and Associates, Inc. Page A-1
Kimley*Horn
Exhibit A
Scope of Work
Technical Analysis Peer Review
Page 1
Our scope of work assumes that the following reports and technical documentation will be provided to
Kimley-Horn for our review and incorporation into the Addendum. All studies and documentation should
identify assumptions and methodology.
• Phase I Environmental Site Assessment
• Geotechnical Feasibility Study
• Parking Assumptions
• Hydrology, Drainage, and Preliminary Water Quality Management Plan (WQMP)
• Utility Infrastructure Plans
• Capacity Availability for Wet and Dry Utilities, including the Irvine Ranch Water District
Preliminary Sub -Area Master Plan Addendum
Visual Simulations and/or Renderings
Upon receipt of the draft technical reports, Kimley-Horn will review each technical report before it is
incorporated into the Addendum. It is our understanding that the City will be providing technical review
of the drainage and water quality studies. Our review will focus on the adequacy of the reports for CEQA
purposes, consistency among reports, and accurate representation of project -related information.
Written comments on the technical reports will be provided to the City, as necessary. Kimley-Horn will
review the revised reports.
Deliverables. All deliverables in this scope of work will be submitted electronically unless otherwise
noted.
• Review of draft technical reports (one round of review is assumed)
• Review of revised technical reports (one round of review is assumed)
Addendum Document
Project Description. Based on information provided by the City and the Applicant, Kimley-Horn will
prepare the Project Description that articulates the characteristics of the project. The draft Project
Description will be provided to the City for review prior to preparation of technical analyses by Kimley-
Horn to ensure concurrence with the key elements of the project that will be carried through into the
analyses. Any changes to the project that would result in changes to the Project Description or Addendum
analyses, including technical studies will require a budget augment.
Air Quality Assessment. The air quality analysis will quantify fugitive dust and equipment exhaust
emissions from construction activities using the California Emissions Estimator Model (CaIEEMod) in
accordance with South Coast Air Quality Management District (SCAQMD) guidance and methodologies.
The air pollutant emissions during construction and operations will be compared to the SCAQMD
thresholds of significance. The significance of air quality impacts will be determined in comparison to
applicable significance thresholds and to the findings of the General Plan EIR. Applicable General Plan
policies and standard conditions will be identified.
Kimley»)Horn Paget
Greenhouse Gas Emissions Assessment. Kim ley -Horn will prepare an inventory of the GHG emissions (i.e.,
nitrous oxide, methane, and carbon dioxide) from project construction and operations. The emissions
inventory will be compiled using CaIEEMod. GHG emissions will be assessed against SCACMD draft
project -level thresholds and consistency with applicable GHG reduction plans including applicable City
policies, and other applicable regional/ statewide GHG emissions reduction strategies. The significance of
GHG impacts will be determined in comparison to applicable significance thresholds and to the findings
of the General Plan EIR. Applicable General Pian policies and standard conditions will be identified.
Noise Assessment. Kimley-Horn will prepare a technical noise analysis to evaluate the new construction
assumptions, duration, earthwork and excavation volumes, and construction equipment proximity to the
adjacent uses. Kimley-Horn will identify any aspects of the project that are proposed to reduce noise. The
noise analysis will evaluate noise -generating activities associated with the proposed project relative to
impacts identified in the General Plan EIR. The significance of noise impacts will be determined in
comparison to applicable significance thresholds and to the findings of the General Plan EIR. Applicable
General Plan policies and standard conditions will be identified. This scope of work excludes field noise
monitoring.
Transportation Assessment. In support of the Addendum, Kimley-Horn will prepare a Vehicle Miles
Traveled (VMT) analysis. Consistent with the guidance provided in SB 743 Implementation for the City of
Newport Beach (April 6, 2020), a determination of project VMT will be identified manually based on daily
trip generation and the trip length in miles for residential land use. Trip length will be determined in
coordination with the City staff based on tools, such as CaIEEMod, or other sources approved by the City.
The project VMT per capita will be compared to a level of 15 percent below existing regional average
residential VMT per capita to determine the potential for a transportation impact.
Amended City Council Policy K-3 requires all non -transportation projects generating 300 or more daily
trips prepare a Level of Service (LOS) consistent with Chapter 15.40 (Traffic Phasing Ordinance) of the
Newport Beach Municipal Code. The proposed LOS scope of work is summarized below based on input
from the City. The report will be summarized in the Addendum.
• Review site plan, including building square footages and uses, site layout, site driveways, parking
supply, and any other site features that will affect the traffic analysis.
• Evaluate potential project impacts no more than 25 intersections, subject to need based on the
1% test per the TPO: 15 intersections in the City of Newport Beach and 10 intersections in the City
of Irvine. This scope of work assumes the availability of traffic counts will be provided by the cities
of Newport Beach and Irvine. The inclusion of Irvine intersections is provided for informational
purposes only.
• Summarize operating conditions at the study intersections for the following scenarios:
Existing Conditions
TPO Analysis Year Without Project (Analysis Year is one year after project opening)
TPO Analysis Year Plus Project (Analysis Year is one year after project opening)
• Develop project trip generation estimates for the proposed project, using the Institute of
Transportation Engineers (ITE) Trip Generation Manual (10th Edition).
• Develop trip distribution assumptions for the project traffic, based on likely origins and
destinations of residents.
KimiepMorn
Page 3
• Identify any project impacts and applicable policies and standard conditions. The traffic study will
address the impacts of a single development scenario. Analysis of project alternatives, phased
development, additional analysis scenarios, or revised analysis to address revisions to the site plan
are not assumed.
• Evaluate site access points, on-site circulation, and parking lot layout. We will identify any
recommended improvements to the site circulation to achieve efficient traffic flows to, from, and
through the site.
Aesthetics and Visual Resources. Changes in the visual character of the project will be addressed
qualitatively using information provided by the Applicant. This scope of work assumes that visual
simulations and/or renderings, if deemed necessary by the City, would be provided by the Applicant. The
project's compliance with applicable development standards to minimize or preclude potential adverse
impacts will be addressed. As such, the project's compatibility with respect to massing, height, and
building materials with the surrounding area will be evaluated.
Agriculture and Forestry Resources; Mineral Resources. The proposed project would not impact
agricultural, forestry, or mineral resources. The project site is in a developed urban area. The General Plan
and the Farmland Mapping and Monitoring Program of the California Resources Agency will be referenced
to note that the site contains no Prime Farmland, Unique Farmland, Farmland of Statewide Importance,
or Forestry Resources, and that the site contains no mineral resources.
Biological Resources. The proposed project site is currently developed. The only vegetation is limited to
ornamental trees; existing documentation will be used. This scope of work does not assume a biological
assessment is required. The resources on the project will be addressed to ensure compliance with the
analysis and requirements set forth in the General Plan EIR.
Cultural Resources. The project does not propose the demolition of existing structures other than
pavement on the project site. The project does not require a General Plan Amendment nor does it include
a Specific Plan, both which trigger agency to agency consultations under Senate Bill (SB) 18 between
Native American groups affiliated with the project area. Additionally, because an Addendum is proposed,
Assembly Bill (AB) 52 does not apply. The Addendum will use available literature review/records search
with respect to archaeological resources. The Addendum will address any potential impacts to cultural
resources associated with excavation activities and identify policies provided in the General Plan EIR and
standard provisions of the City.
Geology, Soils, and Paleontological Resources. The proposed project would include surface grading and
excavation to prepare the site for construction. This scope of work assumes that the Geotechnical Report
provided by the Applicant, in addition to currently available information, will be adequate to assess the
project for potential for impacts associated with seismic activity and site-specific soils/geotechnical
conditions. The Addendum will use available literature review/records search with respect to
paleontological resources. The Addendum will address any potential impacts to geotechnical and
paleontological resources associated with excavation activities and identify policies provided in the
General Plan EIR and standard provisions of the City.
Hazards and Hazardous Materials. Kimley-Horn staff will review and summarize the findings of the
Applicant's Phase I Environmental Site Assessment (ESA) and address consistency with General Plan
findings.
Kimley*Horn Page
Hydrology and Water Quality. Given the project site is already covered by impervious surfaces, the project
is not anticipated to result in a substantial increase in storm water runoff. Based on the Surface Drainage
Study and Preliminary Water Quality Management Plan (WQMP) provided by the Applicant, the
Addendum will address the project's potential impacts on the existing local drainage system and
hydrology of the area, as well as potential surface and groundwater quality impacts. The mitigation
program will be designed to conform to Regional Water Quality Control Board (RWQCB) standards for
construction site erosion and sediment control and will include best management practices (BMPs) as well
as any City -specific requirements.
Land Use and Planning. The Land Use and Planning section will address both the physical changes to the
project site and surrounding area associated with project implementation and the proposed project's
consistency with applicable plans and policies. The review will be based, in part, upon the Applicant's
project application as well as City ordinances and policies, including but not limited to the City General
Plan and General Plan EIR, and the City's development standards. It is our understanding that as a part of
the Project, an amendment to the Koll Center Newport Planned Community Development Plan (PC -15
Koll Center) is required. As a part of the analysis, Kimley-Horn will provide an assessment of the
consistency of the proposed project with the Airport Environs Land Use Plan (AELUP) based on Section
21670(a)(2) of the Public Utilities Code and the General Plan.
Population and Housing. The Addendum will discuss potential impacts associated with changes in
population and housing anticipated by the implementation of the proposed project. The focus of the
analysis will be a comparison of the amount and type of growth anticipated with implementation of the
proposed project with the growth projected in the General Plan, and the policies addressing growth in the
City's planning documents. In addition, the analysis will consider consistency with the goals and policies
of the Housing Element of the General Plan.
Public Services, Facilities, and Utilities. The utilities analysis will be based on information obtained by
coordinating with the respective agencies and information provided by the Applicant responsible for
addressing the provision of wet and dry utilities to the project site. Using this information, Kimley-Horn
will assess whether the increase could have significant impacts. The evaluation will focus on the potential
need to extend or expand utilities and the increased demand on services, including fire and police
protection. We will evaluate the ability of the project to receive adequate service based on applicable City
standards; where services cannot be adequately met, these deficiencies will be identified.
Following the review of the Draft Addendum by the City, Kimley-Horn will revise the Addendum to
incorporate all comments. The revised document will be provided in a version that shows all revisions in
track -change for ease of review as well as a "clean" version of the revised document. If substantial new
analysis is requested that has not previously been prepared or considered in the Addendum, and/or
substantive changes to the Project Description are required to address comments from the City or
Applicant, a budget augment will be required.
Kimley-Horn will also prepare and file the Notice of Determination (NOD) with the Orange County Clerk -
Recorder within five working days of action on the project. This scope of work assumes that the City will
provide us with receipt of prior payment of California Department of Fish and Wildlife (CDFW) fees as a
part of the City's approval of the General Plan Update.
Kimley»)Horn Page
Deliverables
• Project Description (one round of review is assumed)
• Transportation Analyses (two rounds of review are assumed)
• Addendum (three rounds of review are assumed)
• 15 print copies of Addendum with appendices on CD or USB flash drives.
• Notice of Determination
Project Management, Administration, Meetings, and Hearings
Kimley-Horn will maintain regular communications with the City to ensure compliance with the scope of
work, budget, and schedule and to disseminate project information in a timely manner. This coordination
will include email communications and conference calls with the City. Forcost purposes, we have assumed
weekly communication and two public hearings. Participation in and attendance at additional meetings,
conference calls, or public hearings and/or the need for additional management efforts exceeding the
budget will require an amendment or would be billed on a time -and materials basis.
Deliverables
• Weekly communication with City staff
• Participation in two public hearings
EXHIBIT B
SCHEDULE OF BILLING RATES
Kimley-Horn and Associates, Inc. Page B-1
EXHIBIT B - FEES
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Kimley>Morn
Hourly Labor Rate Schedule
Classification
Analyst
Professional
Senior Professional I
Senior Professional 11
Senior Technical Support
Support Staff
Technical Support
Rate
$115-$155
$160-$200
$200-$275
$260-$325
$120-$180
$80-$110
$95-$120
765 The City Drive, Suite 200, Orange, CA 92868 714 939 1030
Page 7
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 City Council, boards
and commissions, officers, agents, volunteers, employees and any person
or entity owning or otherwise in legal control of the property upon which
Consultant performs the Project and/or Services contemplated by this
Agreement.
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, two million dollars ($2,000,000) 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).
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
Kimley-Horn and Associates, Inc. Page C-1
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit 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 two million dollars
($2,000,000) 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.
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 City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement 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, its City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement 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:
Kimley-Horn and Associates, Inc. Page C-2
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. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. 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. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
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.
Kimley-Horn and Associates, Inc. Page C-3
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. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, 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.
Kimley-Horn and Associates, Inc. Page C-4
Residences at 4400 Von Karman
From: Customer Service
To: Ramirez, Brittany; Insurance
Cc: saaarCdebix.com
Subject: Compliance Alert -Vendor Number FV00000158
Date: Thursday, July 09, 2020 5:15:17 PM
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content
is safe.
This Account has moved from non-compliant to COMPLIANT status and is currently in compliance for certificate
of insurance requirements. FV00000158 Kimley-Horn and Associates, Inc.
Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach.