HomeMy WebLinkAboutC-3926 - PSA for Zoning Code RewritePROFESSIONAL SERVICES AGREEMENT WITH
HOGLE - IRELAND, INC. FOR ZONING CODE REWRITE
THIS AGREEMENT is made and entered into as of this 2nd day of April, 2007, by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and
Hogle- Ireland, Inc. a California Corporation whose address is 2860 Michelle Drive,
Irvine, California ( "Consultant "), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City is planning to perform a comprehensive re -write of the Zoning Code (Title 20
of the Municipal Code) for the purpose of implementing the General Plan.
C. City desires to engage Consultant to perform a Zoning Code rewrite that will
include an evaluation of the General Plan and existing Zoning Code and the
drafting of new land use districts, regulations, administrative procedures and all
other sections of the Zoning Code ( "Project").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member[s] of Consultant for purposes of Project, shall be Ron
Pflugrath, AICP, of Hogle- Ireland.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 1st day of June, 2008, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Proposal for
Preparation of a Zoning Code Rewrite and Proposal Addendum (Scope of
Services) and attached hereto as Exhibit A and incorporated herein by reference.
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The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included
in Exhibit A. The failure by Consultant to strictly adhere to the schedule may
result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays
due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for
performance in writing to the Project Administrator not later than ten (10)
calendar days after the start of the condition that purportedly causes a
delay. The Project Administrator shall review all such requests and may
grant reasonable time extensions for unforeseeable delays that are
beyond Consultant's control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates included in Exhibit A and Exhibit B and incorporated herein by
reference. Consultant's compensation for all work performed in accordance with
this Agreement, including all reimbursable items and subconsultant fees, shall
not exceed Five - Hundred Eighty Two Thousand Four Hundred Twenty
Dollars and no /100 ($582,420) without prior written authorization from City. No
billing rate changes shall be made during the term of this Agreement without the
prior written approval of City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the consulting firm and person that performed the work, a brief
description of the services performed and /or the specific task in the Scope
of Services to which it relates, the date the services were performed, the
number of hours spent on all work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant
no later than thirty (30) days after approval of the monthly invoice by City
staff.
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4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibits A and B.
4.4 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this
Agreement, no further payments shall be made until City has accepted the
final work under this Agreement.
5. PROJECT MANAGER
Consultant has designated Ron Pflugrath, AICP as Project Manager. He shall
coordinate all phases of the Project. This Project Manager shall be available to
City at all reasonable times during the Agreement term. Consultant shall not
remove or reassign the Project Manager or any personnel listed in Exhibit A or
assign any new or replacement personnel to the Project without the prior written
consent of City. City's approval shall not be unreasonably withheld with respect
to the removal or assignment of non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
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6. ADMINISTRATION
This Agreement will be administered by the City Manager's Office. SHARON
WOOD shall be 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.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one or more hard
copies and electronic copy of all existing relevant information on file at
City. City will provide all such materials in a timely manner so as not to
cause delays in Consultant's work schedule.
B. Provide photocopying, blueprinting and other services through City's
reproduction company. Consultant will provide electronic copies of
documents and the City will coordinate the required documents with City's
reproduction company. All other reproduction will be the responsibility of
Consultant.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
8.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Consultant to practice its profession.
Consultant further represents and warrants to City that Consultant shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Consultant to practice its profession.
Consultant shall maintain a City of Newport Beach business license
during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
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work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties ") from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to the malfeasance on
the part of Consultant or the active or passive negligence of Consultant in
performing services of work under this Agreement (including, without limitation,
defects in workmanship or materials) or Consultant's presence or activities
conducted on the Project (including the negligent and /or willful acts, errors
and/or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or
indirectly by any of them or for whose acts they may be liable or any or all of
them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are applicable.
The policy limits do not act as a limitation upon the amount of indemnification to be
provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
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11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator andfor his/her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work. Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
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D. Coverage Requirements.
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
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ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City.
F. Timely !Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
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16. SUBCONTRACTING
City and Consultant agree that subconsultants are to be used to complete the work
outlined in the Scope of Services. The subconsultants authorized by City to
perform work on this Project are identified in Exhibit A. The suboonsultants
authorized to work on the Project are Bruce Jacobson of Jacobson and Wack,
Laura Stearns of RBF Consulting, Paul Crawford, FAICP, of Crawford Multari &
Clark Associates and Elwood Tescher, FAICP, of EIP Associates Consultant shall
be fully responsible to City for all acts and omissions of the subcontractors.
Nothing in this Agreement shall create any contractual relationship between City
and subcontractors nor shall it create any obligation on the part of City to pay or to
see to the payment of any monies due to any such subcontractors other than as
otherwise required by law. Except as specifically authorized herein, the services to
be provided under this Agreement shall not be otherwise assigned, transferred,
contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer
or architect in charge of or responsible for the work. City agrees that Consultant
shall not be liable for claims, liabilities or losses arising out of, or connected with
(a) the modification or misuse by City, or anyone authorized by City, of CADD
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Consultant. By acceptance of CADD data, City agrees to indemnify
Consultant for damages and liability resulting from the modification or misuse of
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such CADD data. All original drawings shall be submitted to City in the version
of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file of City Title Sheets. All written documents shall be
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his /her
judgment as a design professional and is supplied for the general guidance of
City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the
accuracy of such opinions as compared to contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
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Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his /her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26, CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant 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:
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Attn: Sharon Wood
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3222
Fax: 949 - 644 -3020
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Ron Pflugrath, AICP
Hogle- Ireland, Inc.
2860 Michelle Drive
Irvine, Ca. 92606
Phone: 949 - 553 -1427
Fax: 949 - 553 -0935
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
termination under this Section, City shall pay Consultant for services
satisfactorily performed and costs incurred up to the effective date of termination
for which Consultant has not been previously paid. On the effective date of
termination, Consultant shall deliver to City all reports, Documents and other
information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
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county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
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.
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.
CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
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37. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPRO,V4=7D AS TO FORM:
Robin Clausen
City Attorney
for the City of Newport Beach
ATTEST:
By: "I - 6TAL"',
Lavonne Harkless,
City Clerk
CITY OF NEWPORT BEACH,
A ipal oration
By:
Steven Rosansky
Mayor
for the City of Newport Beach
CONSULT
y:
raui iref rra;oranner
Hogle- reland, Inc.
CONSULTANT:
By:
La Hogle, 15artner
ogle -Ireland, Inc.
Attachments: Exhibit A — Proposal for Code Rewrite
Exhibit B — Addendum to Proposal
`[!
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
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Agenda Item No. 16
March 27, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Gregg Ramirez, Senior Planner
(949) 644 -3219, gramirez @city.newport- beach.ca.us
SUBJECT: Professional Services Agreement for Comprehensive Rewrite of the
Zoning Code (Title 20) and Planning Department Budget Amendment
RECOMMENDATION:
1. Approve the Professional Services Agreement (PSA) with Hogle- Ireland for the
Zoning Code Rewrite and CEQA Review,
2. Approve budget amendment transferring $632,420 from the unappropriated
General Fund reserve to a new Planning Department account, 2710 -XXXX
Zoning Code Rewrite.
DISCUSSION:
Background:
As a result of the voters approving the General Plan Update, the Zoning Code must be
re- written to create consioency with the General Plan and implement new policies. The
recently adopted General Plan introduces many new land use designations including
new mixed -use designations tailored for specific geographic areas. The project includes
writing new zoning provisions for these land use designations.
The Proposal for Preparation of a Zoning Code Rewrite also requires the consultant to
re-evaluate, and rewrite as necessary, use and development regulations of zoning
districts that will be carried over into the new Zoning Code, as well as all residential and
commercial development regulations to simplify use of the new Zoning Code. The
proposal does not include aftering the recently adopted Sign Code (Chapter 20.67). The
General Plan/Local Coastal Program Implementation Committee and staff will work
closely with the Consultant during the course of the rewrite. The following is a list of
identified issues that will be addressed:
• Z•ng Code Rewrite PSA
March 27, 2007
Page 2
1. New districts, including additional residential density categories, additional
commercial categories, mixed -use districts and possible overlay zones to
implement new General Plan
2. Inclusionary housing requirements
3. Flexible zoning provisions to encourage development of desirable uses
4. Incentives /restrictions for waterfront uses
5. Incentives for marine businesses in West Newport Mesa
6. Prohibition of on -shore facilities for off -shore oil and gas production
7. Stronger waterfront access requirements
8. Public view protection
9. Revision of definitions
10. Revision of Use Classifications/Tables
11. Modification Permit Chapter
12.Accessory structure regulations
13. Eating and drinking establishment regulations
14. Chapter 20.86 (Low and Moderate Income Housing in the Coastal Zone)
15. Convert Specific Plans to conventional zoning or overlay zones
16. Transfer of Development Rights
17. Lot consolidation incentives (West Newport, Old Newport Boulevard, Mariners'
Mile)
18. Height and grade regulations
19. Residential setbacks to remain on District Maps vs. a more general regulation
20. Alternatives to FAR for regulating size and bulk of houses
21. Minimum standards for residential outdoor living area /open space
22. Residential neighborhood character: design standards or guidelines, without a
format review process
23. Commercial interfaces with non - residential uses and buffering requirements
24. Commercial parking standards and in -lieu fee
25. Residential parking requirements based on size of homes
26. Establish lighting standards for commercial and residential uses
27. Non - conforming provisions
28. Review all Speck Plans and convert to conventional zoning, overlays or
specific plans as defined in State law
29. Standards for commercial parking on residential lots in Corona del Mar
30. New provisions for rebuilding non - conforming commercial floor area in Corona
del Mar
31. Natural habitat protection regulations for development adjacent to Buck Gulley
and Morning Canyon
32. Coordination with Staff on the Local Coastal Program Implementation Plan
Additionally, the proposal includes an optional analysis of the existing Planned
Community regulatory documents to make necessary changes to implement the
General Plan, and the Committee recommended that this task be included. The
consultants will also review the PCs and rewrite them as necessary to improve
• Z•ng Code Rewrite PSA
March 27, 2007
Page 3
interpretation and administration. The budgeted amount for this task ($50,420) is an
estimate at this time as the consultants have not had the opportunity to review the PC
texts in detail yet. In addition, the consultants will not perform this work for PCs that are
being amended by private property owners.
Consultant Team
The consultant team consists of principals from five planning firms, with decades of
combined experience writing zoning codes. Ron Pflugrath, AICP, of Hogle Ireland will
act as the Project Manager. Mr. Pflugrath worked on the comprehensive Sign Code
update completed in 2005. Other team members include Bruce Jacobson of Jacobson
and Wack, Laura Steams of RBF Consulting, Paul Crawford, FAICP, of Crawford
Multari & Clark Associates and Elwood (Woodie) Tescher, FAICP, of EIP Associates.
The scope of work specifies that the principals listed above will perform the actual
writing of the Code and provide advice and options for implementing General Plan
policies.
Public Participation
The Zoning Code Rewrite project will include the appointment of a Technical Advisory
Committee to work with the GP /LCP Implementation Committee. Comprised of local
architects and developers, this sub - committee will assist the Committee and staff in the
review of certain code provisions. Additionally, three public workshops will be held
during the course of the rewrite to keep interested citizens and members of the
development community apprised of the progress and identified issues.
Schedule
The schedule identifies tasks for the period of April 2007 — January 2008. The
consultant team will meet with the General Plan /LCP Implementation Committee a
minimum of every other week. Public Hearings on the Zoning Code Rewrite are
tentatively scheduled to begin in November with the Planning Commission and in
December with the City Council.
Budget
Exhibit B of the Addendum to Proposal outlines the cost of the services identified in the
Proposal. The consultant is proposing a total budget of $582,420, including
environmental review, an on -line version of the code and the estimate of $50,420 for the
PC texts (see Section E, Task 6 of the original budget). The budget includes work from
all five of the consultant team members, three public workshops and multiple meetings
with the General Plan/LCP Committee and staff. Details of the hourly rates are included
in Section E of the Proposal (Exhibit A).
Zoning Code Rewrite PSA
March 27, 2007
Page 4
The Proposal does not include printing costs. It is anticipated that printing costs will be
approximately $50,000 bringing the total budget to $632,420.
Budget Amendment
Since funds were not appropriated for the Code Rewrite in the 2006 -2007 fiscal year
budget, staff is requesting that $632,420 be placed into a new Planning Department
account, 2710 -XXXX Zoning Code Rewrite. Unspent funds will be carried over into a
new Zoning Code Rewrite account next fiscal year.
Environmental Review:
The PSA is not defined as project subject to CEQA. However, the Zoning Code Rewrite
is subject to CEQA and review of the project pursuant to CEQA will be completed.
Public Notice:
None required.
Prepared by:
Gregg 9. Ramiret n
Senior Planner
Attachment:
Submitted by:
Jam' i`
Sharon Z. Wood r
Assistant City M ger
A. Professional Services Agreement with Hogle- Ireland, Inc.