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HomeMy WebLinkAboutC-3713(A) - PSA for project management and staff services for Newport Lexus projectPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this 14th day of July, 2004, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as" City"), and Environmental Science Associates, whose address is 4221 Wilshire Boulevard, Suite 480, Los Angeles, California 90010 (hereinafter referred to as "Consultant "), 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 prepare an Environmental Impact Report pursuant to the California Environmental Quality Act (Project) upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purposes of this Project, Wendy Lockwood. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the date first indicated above and shall terminate on the 30th day of June, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of work, attached hereto as Exhibit "A" and incorporated herein by reference. All work and documents shall be prepared in accordance with and shall contain all items required by the California Environmental Quality Act (CEQA), CEQA Implementing Guidelines and City of Newport Beach ordinances and policies. Consultant shall furnish all environmental 0 r documents and forms to City in electronic format, Microsoft Word 2000, or other format acceptable to City. 2.1 If Consultant is requested by City to revise or supplement the draft or final Environmental Impact Report, with additional data, information or analysis as a result of the Environmental Impact Report's failure to comply with requirements of CEQA, Consultant shall provide such revision or supplement at no additional cost to City provided that such revisions are within the scope of work required in Exhibit "A ". 2.2 If changes to existing laws, rules, regulations or policies of any state, federal or local governmental authority having jurisdiction over the project occur during the term of this Agreement that require modification of the draft or final Environmental Impact Report, Consultant will perform such additional services on a time - and - materials basis. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the schedule of compensation, attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of One Hundred Fifteen Thousand Dollars ($115,000). 3.1 Consultant shall maintain accounting records of its billings which include the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of the City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with scheduled billing rates, attached hereto as Exhibit "C" and incorporated herein by reference. 3.4 City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. Such costs shall be limited to and shall include nothing more than the following costs incurred by Consultant: A. Approved document printing, reprographics, and reproduction charges. B. Postage, delivery, and mileage charges. 2 0 0 C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute 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 details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 3 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated Wendy Lockwood to be its Project Manager. Consultant shall not bill any personnel to the Project other than those personnel identified in Exhibit "C ", whether or not considered to be key personnel, without City's prior written approval by name and specific hourly billing rate. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement. Consultant shall perform services in timely manner as necessary for the City of Newport Beach to comply with the submittal and processing requirements of the Permit Streamlining Act. The failure by Consultant to provide services in such timely manner may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition which purportedly causes a delay, and not later than the date upon which performance is due' The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 0 0 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand delivery or mail. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE LAW REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basi s work, activities performed and planned, and any desired. 12. HOLD HARMLESS regarding the status and progress of the meetings that have been scheduled or are Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. 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. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City 0 0 prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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, and with the exception of worker's compensation insurance policy, shall have an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of One Million Dollars ($1,000,000) combined s ingle I imit per occurrence for bodily injury, personal injury and property damage. I f commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of One Million Dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. D. Professional errors and omissions insurance that covers the services to be performed in connection with this Agreement in the minimum amount of One Million Dollars ($1,000,000), if available. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. ESA shall provide 30 days notice of any material change to their coverage. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of 5 0 0 subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. The sale, assignment, transfer or other disposition of any of the issued and outstanding c apital stock of C onsultant, or of t he i nterest of a ny g eneral p artner o r j oint venture or syndicate member or co- tenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. 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. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. • • 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of information provided by City without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 18. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia Temple, Planning Director, shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. In performing duties set forth in the Scope of Services in Exhibit "A ", Consultant shall report to, coordinate with, receive direction from, and be responsive to David Lepo, Project Manager for Hogle- Ireland, Inc. under separate contract with City, as an authorized representative of the Project Administrator. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. C onsultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted 9 0 0 if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose 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. B. 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 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. 24. SUBCONSULTANT AND ASSIGNMENT Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: 0 L Patricia Temple City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3200 Fax 644 -3229 0 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Wendy Lockwood Environmental Science Associates 4221 Wilshire Boulevard Suite 480 Los Angeles, CA 90010 (323) 933 -6111 Fax (323) 934 -1289 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 28. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 10 0 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin auson Assistant City Attorney for the City of Newport Beach ATTEST: By:y LaVonne Harkless City Clerk 11 CITY OF NEWPORT BEACH A Municipal Corporation By: 94ex Homer L. Bludad CON an City Manager for the City of Newport Beach 0 0 EXHIBIT "A" SCOPE OF WORK Outlined below are the proposed scope, tentative schedule and estimated costs for the Newport Beach Lexus Dealership Environmental Impact Report (EIR). As we discussed at the initial meeting, while this is a relatively small project which usually would be subject to a Negative Declaration or Mitigated Negative Declaration, it would seem prudent to prepare an EIR for this project because of the uncertainty and potential controversy associated with cumulative traffic impacts on the border of the City of Irvine. SCOPE OF WORK Task 1. Preparation of Initial Study and Notice of Preparation. Since it has been determined that an EIR is the most prudent course for environmental review of the Newport Beach Lexus Dealership, the Initial Study (IS), can be a brief, document examining all the "easy" No Potential for Significant Impact Issues. We suggest that even though we anticipate that all issues (other than cumulative traffic maybe) could be mitigated and/or have no potential for significant impact, that the following issues (in addition to traffic) be deferred to the EIR for analysis: o Land Use Compatibility/ Aesthetics o Air Quality o Water Quality The Initial Study would document all the "No Potential for Significant Impact" answers in a standard CEQA Checklist. The NOP would briefly outline the project, and would include a site location map and a site plan; while not necessary, we would also recommend attaching the Initial Study so that Irvine and all other interested parties are fully informed and able to make their comments early in the process. Task 2. Meeting and Hearing Attendance. As requested by the City, we are budgeting for 2 meetings per month (averaging 4 hours each) for the duration of the approximately 10 month EIR process (+L including the hearing process). In addition Kimley -Hom has budgeted a total of 15 meetings/hearings. Task 3. Preparation of Traffic Report ( Kimley- Horn). The proposed Lexus Dealership is to be located at the northwest comer of MacArthur Boulevard (north -south street) and Jamboree Road (east -west street) in the City of Newport Beach. The site is currently occupied by Platt College (three two -story buildings) and an Avis Rent -a -Car storage lot. With t he p roposed d evelopment, t he a xisting u ses w ill b e d emolished a nd r eplaced b y a 3 0,000 - square -foot showroom and sales building and 100,000 - square -foot auto service building. The 01 0 0 project also proposes a multi -story parking structure with 1,700 parking spaces for employee parking and storage of sales inventory. The Traffic Impact Study will address the off -site project impacts at area intersections, in accordance with the City's Traffic Phasing Ordinance (TPO) requirements, and the California Environmental Quality Act (CEQA) requirements. The following tasks are envisioned: • Obtain current weekday morning and evening peak hour traffic count data at the following intersections. It is assumed that current peak hour data at the TPO Primary Intersections will be available through the City's TPO program, and that count data for the non -TPO intersections is available through the recently completed preliminary analysis effort. - Mac Arthur and Campus - Campus and Quail * - Irvine / Campus and Bristol N - Irvine / Campus and Bristol S - Irvine and Mesa - Irvine and University - Mac Arthur and Birch - Birch and Quail * - Birch and Bristol N - Birch and Bristol S - Von Karman and Campus - Mac Arthur and Von Karman / Newport Place - Jamboree and Campus - Jamboree and Birch - Jamboree and Mac Arthur - Jamboree and Bristol N - Jamboree and Bristol S - Jamboree and Bayview - Jamboree and Eastbluff / University - Mac Arthur and University - Mac Arthur and Michelson* - Von Karman and Michelson* - Jamboree and Michelson* - Campus and University* * Not a TPO Primary Intersection; included for CEQA analysis only • Develop project trip generation estimates for the proposed project, using the Institute of Transportation Engineers (PTE) Trip Generation Manual (7th Edition). The project trip generation estimate will include a credit for the traffic generated by the existing site uses (Platt College and the Avis Rent -a -Car storage lot). • Develop trip distribution assumptions for the project traffic, based on expected origins and destinations of project customers and employees. Input from the project applicant will be solicited for this task. Project traffic will be distributed through the study intersections, and the project traffic contribution to each intersection will be identified. 2 0 0 • Project trip generation and trip distribution assumptions and analysis methodology will be presented to City staff for review and concurrence prior to proceeding with the analysis phase of the study. • Obtain Approved Project and Cumulative Project information from the City of Newport Beach and the City of hvine. Develop traffic estimates for Approved and Cumulative projects at the study intersections. Conduct the TPO 1% analysis for morning and evening peak hours for TPO (Approved Projects) at all TPO Primary Intersections and CEQA (Cumulative Projects) conditions for all study intersections. Based on the results of the 1% analysis, identify the intersections to be evaluated in the Traffic Impact Study. Based on preliminary analysis already conducted by the City, it is assumed that full intersection analysis will be conducted at up to 10 intersections for the TPO analysis and up to 16 intersections for the CEQA analysis. • Summarize operating conditions at the study intersections for the following scenarios: Existing Conditions Existing Plus Growth Plus Approved Projects - Existing Plus Growth Plus Approved Projects Plus Newport Lexus Project - Existing Plus Growth Plus Approved Projects Plus Cumulative Projects - Existing Plus Growth Plus Approved Projects Plus Cumulative Projects Plus Newport Lexus Project • Identify project impact, and if necessary, identify mitigation measures. Calculate the project's fair -share contribution to the cost of needed improvements. • Discuss site access issues. • Prepare a stand -alone Traffic Impact Study, suitable for incorporation into the environmental document. The traffic study will summarize analysis methodology, findings, and recommendations. • Assist in preparing responses to traffic- related comments. • Attend project team meetings and up to four public hearings. For budgeting purposes, an average of two project team meetings per month between the months of June, 2004 and February, 2005 (excepting the 45 -day review period) is assumed, for a total of 15 project team meetings. If attendance at community outreach meetings or public workshops is required, these will be extra services. Task 4. Preparation of Administrative Draft EIR. The EIR will focus on only the issues anticipated to be impacted by the project: Traffic (see Task 3 above). The EIR will summarize the traffic report (which will be an appendix to the EIR). 9 0 Land Use/Aesthetics. The EIR will summarize the requested land use approvals for the project (General Plan Amendment, Newport Place Community Plan text amendment) Use Permit). The EIR will document the existing regulations and the requested changes. The applicable height limits including the height limit due to the site's proximity to the airport will be identified and the project's consistency with these requirements documented. Views of the project will be discussed. The multi -story project garage will be visible in medium -range views. Project visibility from public vantage points will be discussed. Photomontages are not proposed at the present time. However, if available from the architect they could be incorporated in to the analysis. Architectural treatment of the garage is proposed to reduce the appearance of a monolithic uninteresting structure. The proposed architectural treatments will be described and discussed with respect to the context of the proposed structures. There are a number of mid- and high -rise buildings in the project vicinity. Air Quality. Project construction and potentially even operation have the potential to cause air quality impacts. Typically, but not always, potential impacts can be mitigated through standard mitigation measures. ESA will document construction emissions including construction worker and equipment usage and grading (dust) impacts. Operational impacts will also be documented based on the traffic report. Water Quality, The project already has a Preliminary Water Quality Management Plan. Runoff from the site would discharge into the City's Municipal Separate Storm Sewer System (MS4), and would be subject to the City's water quality rules and regulations for storm water and non -storm water discharges. Potential discharge from the site will be discussed and the effectiveness of proposed treatment options evaluated. The EIR will include a Project Description describing the project and detailing anticipated operations relevant to the impact analyses. Potential Alternatives to the project will be identified; focusing on alternatives that could reduce any identified significant adverse impact(s). In coordination with the City of Newport Beach, and as applicable, City of Irvine, cumulative projects will be identified. The EIR will include a summary and all sections required by the California Environmental Quality Act. Task 5. Response to City and Team Comments. ESA will submit the Administrative Draft EIR to the City and project team for review. Critical sections /analyses will be submitted in advance as they are completed. The complete Administrative Draft EIR will include the Final Traffic Study. ESA (and Kimley -Horn as necessary) will respond to City comments on the Administrative Draft EIR. Task 6. Response to Public and Agency Comments. On completion of the EIR circulation period (usually 45 days), ESA and Kimley -Horn will respond to all comments received on the Draft EIR and prepare an Addendum format Final EIR. Task 7. Mitigation Monitoring Plan. Esa will prepare a mitigation monitoring and reporting plan for any identified mitigation measures. The monitoring plan will identify the party responsible for the monitoring and the timing of the monitoring activity. The plan will also identify what constitutes "clearance" of the measure. Task 8. Findings of Fact, Statement of Overriding Considerations. As necessary, ESA will assist City staff in preparing any required Findings of Fact and Statement of Overriding Considerations. Task 9. Printing and Distribution of Reports. ESA will print and distribute reports as necessary. For budgeting purposes we are assuming printing and mailing 50 NOP's and Initial Studies, 75 Draft EIR's and 50 Final EIR's. 0 Project Schedule Milestone Date Draft Scope of Work for EIR June 16, 2004 Driveway Location from Traffic Consultant June 21, 2004 Final Scope of Work for EIR June 23, 2004 Receipt of Project Application July 12, 2004 EIR Consultant Contract to City Council July 13, 2004 Initial Stud /Notice of Preparation Distributed July 30, 2004 Preliminary Traffic Study Report August 15, 2004 Notice of Preparation Comment Period Ends August 30, 2004 Draft General Plan Amendment S tember 6, 2004 Final Traffic Study Report September 15, 2004 Draft Planned Community Development Plan Text September 15, 2004 First Screencheck EIR Completed September 30, 2004 City Comments to ESA October 15, 2004 2nd Draft Planned Community Development Plan Text October 8, 2004 Second Screencheck EIR Completed October 29, 2004 City Comments to ESA November 15, 2004 Final GPA Text/Final PC Development Plan Text November 9, 2004 Notice of Completion - Draft EIR Circulated (45 days) November 29, 2004 Draft EIR Circulation Ends January 12, 2005 Draft Response to Comments Februaryl, 2005 City Comments to ESA February 15, 2005 Final EIR March 9, 2005 Draft Planning Commission Staff Report to City March 18, 2005 Planning Commission Staff Report Publication Aril 1, 2005 Planning Commission Public Hearing Aril 7, 2005 Draft City Council Staff Report to City Aril 27, 2005 City Council Staff Report Publication I May 4, 2005 City Council Public Hearing May 10, 2005 City Council PC Text 2" Reading May 24, 2005 End 30-Day Referendum Period June 23, 2005 EXHIBIT "B" SCHEDULE OF COMPENSATION PROJECT FEES Fees for preparation of the EIR for Newport Lexus are shown below. Costs Task 1. NOP / Initial Study $5,000 Task 2. ESA Meeting & Hearing attendance (2 per month, 10 months) $14,000 Task 3. Traffic Report $27,500 Traffic consultant meetings/hearing attendance (15) $10,000 Task 4. Administrative Draft EIR and Draft EIR Project Management $13,000 Land Use / Aesthetics $3,500 Traffic $4,000 Air Quality $2,500 Water Quality $1,000 Summary, Other CEQA Sections $3,000 Graphics / Word Processing $4,000 Alternatives $3,000 ADEIR Subtotal $35,500 Task 5. Response to City / Team Comments /a/ $6,000 Task 6. Response to Public and Agency Comments / Preparation of Final $6,000 EIR /b/ Task 7. Mitigation Monitoring Plan $2,500 Task 8. Findings of Fact (Optional) $2,500 Task 9. Printing and Distribution of Reports /c/ $6,000 TOTAL $115,000 /a/ Assumes 60 hours of staff time. /b/ Assumes 60 hours of staff time. /c/ Assumes 50 copies of the NOP/IS, 75 copies of ADEIR/DEIR, 50 copies of FEIR. 7 0 0 EXHIBIT "C" SCHEDULED BILLING RATES (HOURLY) Employee Wendy Lockwood Tom Barnes Chris Mundhenk Shelley Kunasek, Jessica Kirtchner, Kate Shampaine Melissa Gross, Jeremy Buck, Roger Jinks Diara Wilson Natasha Mapp, Sheree lewis N Hourly Billina Rate $175.00 $130.00 $90.00 $75.00 $85.00 $70.00 $55.00 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this 13th day of July, 2004, by and between CITY OF NEWPORT BEACH , a Municipal Corporation (hereinafter referred to as "City "), and Hogle- Ireland, Inc. whose address is 42 Corporate Park, Suite 250, Irvine, California, 92606, (hereinafter referred to as "Consultant"), 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 project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, Larry Hogle. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term. of this Agreement shall commence on the date first written above and shall terminate o n the 3 0th d ay of J une, 2 005, u nless terminated a arlier a s s et forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of 0 0 this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of thirty -seven thousand eight hundred dollars ($37,800). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with Exhibit "B ". 3.4 City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents E 0 0 and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute 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 details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated David Lepo to be its Project Manager. Consultant shall not bill any personnel to the Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without City's prior written approval by name and specific hourly billing rate. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. ll] 0 0 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement Consultant shall perform services in timely manner as necessary for the City of Newport Beach to comply with submittal and processing requirements of the Permit Streamlining Act. The failure by Consultant to provide services in such timely manner may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 0 0 0 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. 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. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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, and with the exception of worker's compensation insurance policy, shall have an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide, unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. 5 0 0 C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. 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. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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 N. 0 0 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. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of information provided by City without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 18. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia Temple shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment 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 7 appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose 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. B. 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 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. 24. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under 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. G 0 0 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach Planning Department 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3200 Fax 644 -3350 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: David Lepo Hogle- Ireland, Inc. 42 Corporate Park, Suite 250 Irvine, CA 92606 (949) 553 -1421 Fax 553 -0935 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. 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 9 0 0 same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. 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. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless City Clerk J /, CITY OF NEWPORT BEACH A Municipal Corporation By: „Y Z046. Homer Blud u City Manager for the City of Newport Beach CONSULTANT By: gHogle, Partner Hogle- Ireland, Inc. 10 EXHIBIT "A" SCOPE OF SERVICES Hogle- Ireland will provide contract planning and project management services to the City of Newport Beach in conjunction with processing of the Lexus of Newport Beach project. Hogle- Ireland will function on behalf of the City in reviewing project submittals, supervising preparation of the work product of the project traffic consultant, managing and monitoring the Environmental Impact Report preparation and review process, preparing staff analyses and reports for Planning Commission and City Council approvals, monitoring schedules and taking actions as are necessary and appropriate to ensure that City- required reviews and actions take place in a timely manner, assisting in the selection of technical consultants, and monitoring of technical consultant work and schedules. As it is virtually impossible to establish a "not to exceed" cost at the outset of a project such as this, Hogle- Ireland's services will be provided on a "time and materials" basis. Hourly rates are included as Exhibit "B ". For budgeting purposes, $37,800 is authorized for this contract based on an average of thirty (30) Project Manager hours per month during the term of this agreement. Wherever appropriate, an Associate Project Manager may be assigned tasks included within the estimated budget and under the Project Manager's supervision in order that the highest quality work product may be provided in the most cost - effective manner. Hogle - Ireland does not charge mileage, telephone, or fax charges within Orange County. 11 0 r� EXHIBIT "B" SCHEDULE OF HOURLY RATES HOGLE - IRELAND, INC. HOURLY RATES Effective February 1, 2004 CLASSIFICATION RATE Partner $150.00 Principal 125.00 Senior Designer 112.00 Senior Project Manager 112.00 Project Manager 105.00 Senior Associate Project Manager 95.00 Associate Project Manager 90.00 Graphics Designer 75.00 Assistant Project Manager 75.00 Project Technician/Permit Technician 60.00 Word Processing 45.00 All hourly rates include normal overhead and travel expenses. Reimbursable expenses, including blueprints, etc., will be billed at cost plus 10 %. Expert Witness Rate - $250.00 per hour for depositions and testimony Hogle- Ireland hourly rates are adjusted annually. 12 C-3�13 (3��oo -Zo0�1 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 July 13, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community & Economic Development, Planning Department George A. Berger, AICP, Program Manager 949/644 -3207. gaberger @city.newport- beach.ca.us SUBJECT: Professional Services Agreement for Project Management Services, and Professional Services Agreement to prepare an Environmental Impact Report for Newport Lexus project. RECOMMENDATIONS: 1) Approve a Professional Services Agreement with Hogle- Ireland, Inc. of Irvine, California, for project management and staff services at a not to exceed cost of $37,800; and 2) Approve a Professional Services Agreement with Environmental Service Associates, Inc. (ESA) of Los Angeles, California, for professional environmental services to prepare an Environmental Impact Report not to exceed cost of $115,000; and 3) Authorize City Manager to sign Agreements. DISCUSSION: Wilson Automotive Group proposes the construction of a new Lexus automotive sales and service dealership located at the northwest corner of MacArthur Boulevard and Jamboree Road. The site is currently occupied by Platt College (three two -story buildings) and an Avis Rent -a -Car storage lot. With the proposed development, the existing uses will be demolished and replaced by a 30,000 square foot showroom and sales building and a 100,000 square foot auto service building. The project also proposes a multi -story parking structure with 1,700 parking spaces for employee parking and storage of sales inventory. The total square footage for all structures is Newport Lexus PM & EIR July 13, 2004 Page 2 approximately 186,000 square feet. The project is proposed to be located on a site that is approximately 8.05 acres in size. The application includes a request for approval of: an Amendment to the General Plan; a Planned Community Text Amendment (Newport Place); a Use Permit; Modification Permit; approval of a Traffic Phasing Ordinance traffic study; and a Lot Line Adjustment. Project Management Services Project management services to augment City staff are required for this project due to existing staff work load constraints, coupled with the rapid time frame requested by the project applicant. Staff has determined that Hogle- Ireland, Inc. is well- suited for this project and has performed well in past contractual project management roles for the City. Staff has reviewed the scope of services and "do- not - exceed" amount for the project management contract, and the consulting fees are considered appropriate and warranted. Environmental Impact Report Preparation Staff conducted a preliminary evaluation of the proposed project and concluded that an Environmental Impact Report should be prepared for the project. Council Policy K -3 allows the City to select a qualified consultant for environmental services without a competitive bidding process, and ESA was selected for approval due to experience, cost, scope of services provided and timeline. The consultant has provided a proposal to perform professional environmental services for the City of Newport Beach for the preparation and processing of a project level Environmental Impact Report and supporting documents for the project. A copy of the proposal is attached to the draft professional services agreement that is attached to this report. The proposal contains the scope of services through the completion of the Final Project EIR, proposed budget, and time schedule for preparation and processing the environmental documentation. Staff has reviewed the scope of services for the EIR contract, and believes it is adequate to meet or exceed the minimum requirements set forth by the California Environmental Quality Act. In addition to specific land use /aesthetics, air quality and water quality analyses and the preparation of all the EIR documents, the scope of services includes a traffic study to be completed by Kimley -Horn & Associates that will be an appendix to the document. The environmental consulting fees for tasks described in the scope of services including staff hours, technical studies, direct expenses, and printing have been reviewed by staff and are considered appropriate and warranted. FA Wort Lexus PM & EIR July 13, 2004 Page 3 Fundinq Availability: The cost of these contracts will be the responsibility of Newport Lexus. Submitted by: W®r z N WO � vrizno • r-r- Prepared by: Attachments: 1. Draft Professional Services Agreement from Hogle- Ireland, Inc. 2. Draft Professional Services Agreement with draft proposal from Environmental Services Associates, Inc. 3 0 • ATTACHMENT 1 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of June, 2004, by and between CITY OF NEWPORT BEACH , a Municipal Corporation (hereinafter referred to as "City "), and Hogle- Ireland, Inc. whose address is 42 Corporate Park, Suite 250, Irvine, California, 92606, (hereinafter referred to as "Consultant'), 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 project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, Larry Hogle. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the date first written above and shall terminate on the 30th day of June, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of M this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of thirty -seven thousand eight hundred dollars ($37,800). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with Exhibit "B ". 3.4 City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents 2 5 0 and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute 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 details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated David Lepo to be its Project Manager. Consultant shall not bill any personnel to the Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without City's prior written approval by name and specific hourly billing rate. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 m 0 TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement Consultant shall perform services in timely manner as necessary for the City of Newport Beach to comply with submittal and processing requirements of the Permit Streamlining Act. The failure by Consultant to provide services in such timely manner may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 7 0 0 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. 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. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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, and with the exception of worker's compensation insurance policy, shall have an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide, unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. 5 0 0 C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. 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. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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 2 6l 0 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. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of information provided by City without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 18. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia Temple shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment 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 E 0 0 appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose 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. B. 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 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. 24. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under 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. • 0 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach Planning Department 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3200 Fax 644 -3350 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: David Lepo Hogle- Ireland, Inc. 42 Corporate Park, Suite 250 Irvine, CA 92606 (949) 553 -1421 Fax 553 -0935 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. 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 E IZ 0 same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. 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. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation Homer Bludau City Manager for the City of Newport Beach CONSULTANT By: Larry Hogle, Partner Hogle- Ireland, Inc. 10 13 EXHIBIT "A" SCOPE OF SERVICES Hogle- Ireland will provide contract planning and project management services to the City of Newport Beach in conjunction with processing of the Lexus of Newport Beach project. Hogle - Ireland will function on behalf of the City in reviewing project submittals, supervising preparation of the work product of the project traffic consultant, managing and monitoring the Environmental Impact Report preparation and review process, preparing staff analyses and reports for Planning Commission and City Council approvals, monitoring schedules and taking actions as are necessary and appropriate to ensure that City- required reviews and actions take place in a timely manner, assisting in the selection of technical consultants, and monitoring of technical consultant work and schedules. As it is virtually impossible to establish a "not to exceed" cost at the outset of a project such as this, Hogle- Ireland's services will be provided on a "time and materials" basis. Hourly rates are included as Exhibit "B ". For budgeting purposes, $37,800 is authorized for this contract based on an average of thirty (30) Project Manager hours per month during the term of this agreement. Wherever appropriate, an Associate Project Manager may be assigned tasks included within the estimated budget and under the Project Manager's supervision in order that the highest quality work product may be provided in the most cost - effective manner. Hogle- Ireland does not charge mileage, telephone, or fax charges within Orange County. 11 14 0 0 EXHIBIT "B" SCHEDULE OF HOURL Y RA TES HOGLE - IRELAND, INC. HOURLY RATES Effective February 1, 2004 CLASSIFICATION RATE Partner $150.00 Principal 125.00 Senior Designer 112.00 Senior Project Manager 112.00 Project Manager 105.00 Senior Associate Project Manager 95.00 Associate Project Manager 90.00 Graphics Designer Assistant Project Manager 75.00 Project Technician/Permit Technician 60.00 Word Processing 45.00 75.001 All hourly rates include normal overhead and travel expenses. Reimbursable expenses, including blueprints, etc., will be billed at cost plus 10 %. Expert Witness Rate- $250.00 per hour for depositions and testimony Hogle- Ireland hourly rates are adjusted annually. 12 15 • ATTACHMENT 2 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this 14th day of July, 2004, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and Environmental Science Associates, whose address is 4221 Wilshire Boulevard, Suite 480, Los Angeles, California 90010 (hereinafter referred to as "Consultant'), 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 prepare an Environmental Impact Report pursuant to the California Environmental Quality Act (Project) upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purposes of this Project, Wendy Lockwood. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the date first indicated above and shall terminate on the 30th day of June, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of work, attached hereto as Exhibit "A" and incorporated herein by reference. All work and documents shall be prepared in accordance with and shall contain all items required by the California Environmental Quality Act (CEQA), CEQA Implementing Guidelines and City of Newport Beach ordinances and policies. Consultant shall furnish all environmental 1 A, 0 0 documents and forms to City in electronic format, Microsoft Word 2000, or other format acceptable to City. 2.1 If Consultant is requested by City to revise or supplement the draft or final Environmental Impact Report, with additional data, information or analysis as a result of the Environmental Impact Report's failure to comply with requirements of CEQA, Consultant shall provide such revision or supplement at no additional cost to City provided that such revisions are within the scope of work required in Exhibit "A ". 2.2 If changes to existing laws, rules, regulations or policies of any state, federal or local governmental authority having jurisdiction over the project occur during the term of this Agreement that require modification of the draft or final Environmental Impact Report, Consultant will perform such additional services on a time - and - materials basis. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the schedule of compensation, attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of One Hundred Fifteen Thousand Dollars ($115,000). 3.1 Consultant shall maintain accounting records of its billings which include the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of the City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with scheduled billing rates, attached hereto as Exhibit "C" and incorporated herein by reference. 3.4 City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. Such costs shall be limited to and shall include nothing more than the following costs incurred by Consultant: A. Approved document printing, reprographics, and reproduction charges. B. Postage, delivery, and mileage charges. 2 1-1 • • C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute 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 details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. [93 0 • 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated Wendy Lockwood to be its Project Manager. Consultant shall not bill any personnel to the Project other than those personnel identified in Exhibit "C ", whether or not considered to be key personnel, without City's prior written approval by name and specific hourly billing rate. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement. Consultant shall perform services in timely manner as necessary for the City of Newport Beach to comply with the submittal and processing requirements of the Permit Streamlining Act. The failure by Consultant to provide services in such timely manner may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 4 lot 0 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE LAW REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. 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. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City s 7,0 0 0 prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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, and with the exception of worker's compensation insurance policy, shall have an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of One Million Dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. D. Professional errors and omissions insurance that covers the services to be performed in connection with this Agreement in the minimum amount of One Million Dollars ($1,000,000), if available. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. ESA shall provide 30 days notice of any material change to their coverage. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of 0 2t 0 0 subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 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 venture or syndicate member or co- tenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. 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. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 7 12- s • 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of information provided by City without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 18. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia Temple, Planning Director, shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. In performing duties set forth in the Scope of Services in Exhibit "A ", Consultant shall report to, coordinate with, receive direction from, and be responsive to David Lepo, Project Manager for Hogle- Ireland, Inc. under separate contract with City, as an authorized representative of the Project Administrator. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted 0 23 Ll if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose 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. B. 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 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. 24. SUBCONSULTANT AND ASSIGNMENT Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Pi L1f 0 0 Patricia Temple City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3200 Fax 644 -3229 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Wendy Lockwood Environmental Science Associates 4221 Wilshire Boulevard Suite 480 Los Angeles, CA 90010 (323) 933 -6111 Fax (323) 934 -1289 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 28. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. io IS 0 0 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation as Robin Clauson Assistant City Attorney for the City of Newport Beach ATTEST: (-n LaVonne Harkless City Clerk ii On Homer L. Bludau City Manager for the City of Newport Beach CONSULTANT M 26. 0 • EXHIBIT "A" SCOPE OF WORK Outlined below are the proposed scope, tentative schedule and estimated costs for the Newport Beach Lexus Dealership Environmental Impact Report (EIR). As we discussed at the initial meeting, while this is a relatively small project which usually would be subject to a Negative Declaration or Mitigated Negative Declaration, it would seem prudent to prepare an EIR for this project because of the uncertainty and potential controversy associated with cumulative traffic impacts on the border of the City of Irvine. SCOPE OF WORK Task 1. Preparation of Initial Study and Notice of Preparation. Since it has been determined that an EIR is the most prudent course for environmental review of the Newport Beach Lexus Dealership, the Initial Study (IS), can be a brief, document examining all the "easy" No Potential for Significant Impact Issues. We suggest that even though we anticipate that all issues (other than cumulative traffic maybe) could be mitigated and/or have no potential for significant impact, that the following issues (in addition to traffic) be deferred to the EIR for analysis: Land Use Compatibility/ Aesthetics o Air Quality o Water Quality The Initial Study would document all the "No Potential for Significant Impact' ' answers in a standard CEQA Checklist. The NOP would briefly outline the project, and would include a site location map and a site plan; while not necessary, we would also recommend attaching the Initial Study so that Irvine and all other interested parties are fully informed and able to make their comments early in the process. Task 2. Meeting and Hearing Attendance. As requested by the City, we are budgeting for 2 meetings per month (averaging 4 hours each) for the duration of the approximately 10 month EIR process (+L including the hearing process). In addition Kimley -Horn has budgeted a total of 15 meetings/hearings. Task 3. Preparation of Traffic Report ( Kimley- Horn). The proposed Lexus Dealership is to be located at the northwest corner of MacArthur Boulevard (north -south street) and Jamboree Road (east -west street) in the City of Newport Beach. The site is currently occupied by Platt College (three two -story buildings) and an Avis Rent -a -Car storage lot. With the proposed development, the existing uses will be demolished and replaced by a 30,000 - square -foot showroom and sales building and 100,000 - square -foot auto service building. The .11 i 0 project also proposes a multi -story parking structure with 1,700 parking spaces for employee parking and storage of sales inventory. The Traffic Impact Study will address the off -site project impacts at area intersections, in accordance with the City's Traffic Phasing Ordinance (TPO) requirements, and the California Environmental Quality Act (CEQA) requirements. The following tasks are envisioned: • Obtain current weekday morning and evening peak hour traffic count data at the following intersections. It is assumed that current peak hour data at the TPO Primary Intersections will be available through the City's TPO program, and that count data for the non -TPO intersections is available through the recently completed preliminary analysis effort. - Mac Arthur and Campus - Campus and Quail * - Irvine / Campus and Bristol N - Irvine / Campus and Bristol S - Irvine and Mesa - Irvine and University - Mac Arthur and Birch - Birch and Quail * - Birch and Bristol N - Birch and Bristol S - Von Karman and Campus - Mac Arthur and Von Karman / Newport Place - Jamboree and Campus - Jamboree and Birch - Jamboree and Mac Arthur - Jamboree and Bristol N - Jamboree and Bristol S - Jamboree and Bayview - Jamboree and Eastbluff/ University - Mac Arthur and University - Mac Arthur and Michelson* - Von Karman and Michelson* - Jamboree and Michelson* - Campus and University* * Not a TPO Primary Intersection; included for CEQA analysis only • Develop project trip generation estimates for the proposed project, using the Institute of Transportation Engineers (ITE) Trip Generation Manual (7th Edition l. The project trip generation estimate will include a credit for the traffic generated by the existing site uses (Platt College and the Avis Rent -a -Car storage lot). • Develop trip distribution assumptions for the project traffic, based on expected origins and destinations of project customers and employees. Input from the project applicant will be solicited for this task. Project traffic will be distributed through the study intersections, and the project traffic contribution to each intersection will be identified. 2 99 0 0 Project trip generation and trip distribution assumptions and analysis methodology will be presented to City staff for review and concurrence prior to proceeding with the analysis phase of the study. • Obtain Approved Project and Cumulative Project information from the City of Newport Beach and the City of Irvine. Develop traffic estimates for Approved and Cumulative projects at the study intersections. Conduct the TPO 1% analysis for morning and evening peak hours for TPO (Approved Projects) at all TPO Primary Intersections and CEQA (Cumulative Projects) conditions for all study intersections. Based on the results of the 1% analysis, identify the intersections to be evaluated in the Traffic Impact Study. Based on preliminary analysis already conducted by the City, it is assumed that full intersection analysis will be conducted at up to 10 intersections for the TPO analysis and up to 16 intersections for the CEQA analysis. • Summarize operating conditions at the study intersections for the following scenarios: - Existing Conditions - Existing Plus Growth Plus Approved Projects - Existing Plus Growth Plus Approved Projects Plus Newport Lexus Project - Existing Plus Growth Plus Approved Projects Plus Cumulative Projects - Existing Plus Growth Plus Approved Projects Plus Cumulative Projects Plus Newport Lexus Project • Identify project impact, and if necessary, identify mitigation measures. Calculate the project's fair -share contribution to the cost of needed improvements. • Discuss site access issues. • Prepare a stand -alone Traffic Impact Study, suitable for incorporation into the environmental document. The traffic study will summarize analysis methodology, findings, and recommendations. • Assist in preparing responses to traffic- related comments. • Attend project team meetings and up to four public hearings. For budgeting purposes, an average of two project team meetings per month between the months of June, 2004 and February, 2005 (excepting the 45 -day review period) is assumed, for a total of 15 project team meetings. If attendance at community outreach meetings or public workshops is required, these will be extra services. Task 4. Preparation of Administrative Draft EIR. The EIR will focus on only the issues anticipated to be impacted by the project: Traffic (see Task 3 above). The EIR will summarize the traffic report (which will be an appendix to the EIR). 3 2-q Land Use /Aesthetics. The EIR will summarize the requested land use approvals for the project (General Plan Amendment, Newport Place Community Plan text amendment) Use Permit). The EIR will document the existing regulations and the requested changes. The applicable height limits including the height limit due to the site's proximity to the airport will be identified and the project's consistency with these requirements documented. Views of the project will be discussed. The multi -story project garage will be visible in medium -range views. Project visibility from public vantage points will be discussed. Photomontages are not proposed at the present time. However, if available from the architect they could be incorporated in to the analysis. Architectural treatment of the garage is proposed to reduce the appearance of a monolithic uninteresting structure. The proposed architectural treatments will be described and discussed with respect to the context of the proposed structures. There are a number of mid- and high -rise buildings in the project vicinity. Air Quality. Project construction and potentially even operation have the potential to cause air quality impacts. Typically, but not always, potential impacts can be mitigated through standard mitigation measures. ESA will document construction emissions including construction worker and equipment usage and grading (dust) impacts. Operational impacts will also be documented based on the traffic report. Water Quality. The project already has a Preliminary Water Quality Management Plan. Runoff from the site would discharge into the City's Municipal Separate Storm Sewer System (MS4), and would be subject to the City's water quality rules and regulations for storm water and non -storm water discharges. Potential discharge from the site will be discussed and the effectiveness of proposed treatment options evaluated. The EIR will include a Project Description describing the project and detailing anticipated operations relevant to the impact analyses. Potential Alternatives to the project will be identified; focusing on alternatives that could reduce any identified significant adverse impact(s). In coordination with the City of Newport Beach, and as applicable, City of Irvine, cumulative projects will be identified. The EIR will include a summary and all sections required by the California Environmental Quality Act. Task 5. Response to City and Team Comments. ESA will submit the Administrative Draft EIR to the City and project team for review. Critical sections /analyses will be submitted in advance as they are completed. The complete Administrative Draft EIR will include the Final Traffic Study. ESA (and Kimley -Horn as necessary) will respond to City comments on the Administrative Draft EIR. Task 6. Response to Public and Agency Comments. On completion of the EIR circulation period (usually 45 days), ESA and Kimley -Horn will respond to all comments received on the Draft EIR and prepare an Addendum format Final EIR. 4 GJ 0 0 Task 7. Mitigation Monitoring Plan. Esa will prepare a mitigation monitoring and reporting plan for any identified mitigation measures. The monitoring plan will identify the party responsible for the monitoring and the timing of the monitoring activity. The plan will also identify what constitutes "clearance" of the measure. Task S. Findings of Fact, Statement of Overriding Considerations. As necessary, ESA will assist City staff in preparing any required Findings of Fact and Statement of Overriding Considerations. Task 9. Printing and Distribution of Reports. ESA will print and distribute reports as necessary. For budgeting purposes we are assuming printing and mailing 50 NOP's and Initial Studies, 75 Draft EIR's and 50 Final EIR's. 5 31 0 Project Schedule Milestone Date Draft Scope of Work for EIR June 16, 2004 Driveway Location from Traffic Consultant June 21, 2004 Final Scope of Work for EIR June 23, 2004 Receipt of Project Application July 12, 2004 EIR Consultant Contract to City Council July 13, 2004 Initial Stud /Notice of Preparation Distributed July 30, 2004 Preliminary Traffic Study Report August 15, 2004 Notice of Preparation Comment Period Ends August 30, 2004 Draft General Plan Amendment Se tember 6, 2004 Final Traffic Study Report September 15, 2004 Draft Planned Community Development Plan Text September 15, 2004 First Screencheck EIR Completed September 30, 2004 City Comments to ESA October 15, 2004 2nd Draft Planned Community Development Plan Text October 8, 2004 Second Screencheck EIR Completed October 29, 2004 City Comments to ESA November 15, 2004 Final GPA Text/Final PC Development Plan Text November 9, 2004 Notice of Completion - Draft EIR Circulated 45 days) November 29, 2004 Draft EIR Circulation Ends January 12, 2005 Draft Response to Comments February], 2005 City Comments to ESA February 15, 2005 Final EIR March 9, 2005 Draft Planning Commission Staff Report to City March 18, 2005 Planning Commission Staff Report Publication Aril 1, 2005 Planning Commission Public Hearing Aril 7, 2005 Draft City Council Staff Report to City Aril 27, 2005 City Council Staff Report Publication May 4, 2005 City Council Public Hearing May 10, 2005 City Council PC Text 2" Reading May 24, 2005 End 30-Day Referendum Period June 23, 2005 3Z I , EXHIBIT "B" SCHEDULE OF COMPENSATION PROJECT FEES Fees for preparation of the EIR for Newport Lexus are shown below. Costs Task 1. NOP / Initial Study $5,000 Task 2. ESA Meeting & Hearing attendance (2 per month, 10 months) $14,000 Task 3. Traffic Report $27,500 Traffic consultant meetings/hearing attendance (15) $10,000 Task 4. Administrative Draft EIR and Draft EIR Project Management $13,000 Land Use / Aesthetics $3,500 Traffic $4,000 Air Quality $2,500 Water Quality $1,000 Summary, Other CEQA Sections $3,000 Graphics/ Word Processing $4,000 Alternatives $3,000 ADEIR Subtotal $35,500 Task 5. Response to City / Team Comments /a/ $6,000 Task 6. Response to Public and Agency Comments / Preparation of Final $6,000 EIR /b/ Task 7. Mitigation Monitoring Plan $2,500 Task 8. Findings of Fact (Optional) $2,500 Task 9. Printing and Distribution of Reports /c/ $6,000 TOTAL $115,000 /a/ Assumes 60 hours of staff time. /b/ Assumes 60 hours of staff time. /c/ Assumes 50 copies of the NOP/IS, 75 copies of ADEIR/DEIR, 50 copies of FEIR. 7 33 0 Employee 0 EXHIBIT "C" SCHEDULED BILLING RATES (HOURLY) Wendy Lockwood Tom Barnes Chris Mundhenk Shelley Kunasek, Jessica Kirtchner, Kate Shampaine Melissa Gross, Jeremy Buck, Roger Jinks Diara Wilson Natasha Mapp, Sheree lewis 0 Hourly Billino Rate $175.00 $130.00 $90.00 $75.00 $85.00 $70.00 $55.00 39