HomeMy WebLinkAboutC-4033 - PSA for Planning Services (Newport Banning Ranch)�D33
AMENDMENT NO. 2
TO
PROFESSIONAL SERVICES AGREEMENT WITH
DEBORAH LINN d.b.a. LINN & ASSOCIATES
FOR NEWPORT BANNING RANCH
THIS AMENDMENTI4NO. 2 TO PRFF�SSIONAL SERVICES AGREEMENT, is
entered into as of this �J— day of 2010, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "City "), and Deborah Linn doing
business as Linn & Associates, whose address is 826 Molino Avenue, Long Beach,
California 90804 ( "Consultant "), and is made with reference to the following:
RECITALS:
A. On April 21, 2008, City and Consultant entered into a Professional Services
Agreement, hereinafter referred to as "AGREEMENT," for project management
and planning services for development project applications submitted to the City.
B. On January 12, 2010, City approved AMENDMENT NO. 1 to reflect additional
services not included in the AGREEMENT, to extend the term of the
AGREEMENT and to increase the total compensation.
C. CITY desires to enter into this AMENDMENT NO. 2 to extend the term of the
AGREEMENT and to increase the total compensation.
D. City and Consultant mutually desire to amend AGREEMENT, as provided below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
Section 1 of the AGREEMENT shall be amended hereby and the following is
substituted in its entirety.
The term of the AGREEMENT shall terminate on July 31, 2011, unless
terminated earlier as provided for in the AGREEMENT.
2. ADDITIONAL SERVICES TO BE PERFORMED
Section 2 of the Agreement shall be amended hereby and the following is
substituted in its entirety.
CONSULTANT shall diligently perform all the services described in the
AGREEMENT and AMENDMENT NO. 2 including, but not limited to, all work set
forth in the Scope of Services attached hereto as Exhibit A and incorporated
herein by reference. The City may elect to delete certain tasks of the Scope of
Services at its sole discretion.
3. COMPENSATION
The introductory paragraph to Section 4 shall be amended hereby and the
following is substituted in its entirety.
City shall pay Consultant for the services on a time and expense basis in
accordance with the provisions of this Section and the Schedule of Billing Rates
attached to the AGREEMENT. Consultant's total amended compensation for all
work performed in accordance with this Agreement, shall not exceed Three
Hundred Twenty Thousand Dollars and no /100 ($320,000.00) without prior
written authorization from City. The amended compensation reflects
Consultant's additional compensation for services to be performed in accordance
with this AMENDMENT NO. 2, excluding reimbursable items and all
subconsultant fees, in an amount not to exceed Eighty Thousand Dollars and
no /100 ($80,000.00), without prior written authorization from City. No billing rate
changes shall be made during the term of the AGREEMENT without the prior
written approval of the City.
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
`A
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 2
on the date first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By: o I
Leonie Mulvihill
Assistant City Attorney
ATTEST:
By: /► W M,
Leilani I. Brown
City Clerk
Attachment:
sc.1 tion®
n
r
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: G..\
D id A. Kiff
City Manager
CONSULTANT: [INSERT NAME]
By:
(Corporate Officer)
Title:
Print Name: — e Z' by
By:_
Title:
(Financial Officer)
Print Name:
Exhibit A —Scope of Services
3
Exhibit "A"
SCOPE OF SERVICES
Deborah Linn d.b.a. Linn & Associates will provide contract planning and project
management services to the City of Newport Beach in conjunction with processing of
planning applications. Deborah Linn 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 CEQA document preparation, 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.
Tasks include but are not limited to the following:
1. Coordination of staff review of project application materials.
2. Review, comment, and monitoring of CEQA documentation.
3. Preparation of project schedules and memoranda.
4. Coordination of and attendance at project team meetings.
5. Monitoring and coordinating work effort of City consultant team.
6. Attend project technical meetings with City and applicants.
7. Coordinating and monitoring application review with City departments.
8. Attendance community meetings and public workshops as requested.
9. Preparation of staff reports for Planning Commission and City Council.
10. Attendance at public hearings and presentation of reports to public bodies.
4
LIU
AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH
DEBORAH LINN DBA LINN & ASSOCIATES
FOR PLANNING SERVICES
THIS AMENDMENT NO, 1 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 12th day of January, 2010, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "CITY"), and Deborah Linn doing
business as Linn & Associates, a sole proprietor, whose address is 826 Molino
Avenue, Long Beach, California 90804 ( "CONSULTANT'), and is made with reference
to the following:
RECITALS:
A. On April 21, 2008, CITY and CONSULTANT entered into a Professional Services
Agreement, hereinafter referred to as "AGREEMENT," for project management
and planning services for development project applications submitted to the City.
B. CITY desires to enter into this AMENDMENT NO. 1 to extend the term of the
AGREEMENT and to increase the total compensation.
C. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1," as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of the AGREEMENT shall be extended to December 31, 2010.
2. ADDITIONAL SERVICES TO BE PERFORMED
CONSULTANT shall diligently perform all the services described in the
AGREEMENT and AMENDMENT NO. 1 including, but not limited to, all work set
forth in the Scope of Services attached hereto as Exhibit A and incorporated
herein by reference. The City may elect to delete certain tasks of the Scope of
Services at its sole discretion.
3. COMPENSATION
City shall pay Consultant for the services on a time and expense basis in
accordance with the provisions of this Section and the Schedule of Billing Rates
attached to the AGREEMENT. Consultant's total amended compensation for all
work performed in accordance with this Agreement, shall not exceed Two
Hundred Forty Thousand Dollars and nof100 ($240,000.00) without prior
written authorization from City.
3.1 The amended compensation reflects Consultant's additional
compensation for services to be performed in accordance with this
AMENDMENT NO. 1, including reimbursable items and subconsultant
fees, in an amount not to exceed Ninety Thousand Dollars and no/100
($90,000.00), without prior written authorization from City.
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leonie H. Mulvihill
Assistant City Attorney
ATTEST:
By: r Kw1 _
Leilani I. Brown, .1�
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
A Municipal Corporation
c�
David A. Kiff
City Manager
CONSULTANT: LINN & ASSOCIATES
B
ta:� /rahinn, Sole Proprietor
Exhibit A —Scope of Services
O
0 0
Exhibit "A"
SCOPE OF SERVICES
Deborah Linn d.b.a. Linn & Associates will provide contract planning and project
management services to the City of Newport Beach in conjunction with processing of
planning application. Deborah Linn 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 CEQA document preparation, 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.
Tasks include but are not limited to the following:
1. Coordination of staff review of project application materials.
2. Review, comment, and monitoring of CEQA documentation.
3. Preparation of project schedules and memoranda.
4. Coordination of and attendance at project team meetings.
5. Monitoring and coordinating work effort of City consultant team.
6. Attend project technical meetings with City and applicants.
7. Coordinating and monitoring application review with City departments.
8. Attendance community meetings and public workshops as requested.
9. Preparation of staff reports for Planning Commission and City Council.
10. Attendance at public hearings and presentation of reports to public bodies.
Hourly Rate:
$125
Kl
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
cv ara� cmr coLraciL y-f la
°�y`i3
Agenda Item No. 10
January 12, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Sharon Wood, Assistant City Manager
949 - 644 -3222, swood @city.newport- beach.ca.us
SUBJECT: Amendments to Professional Services Agreements with Consulting
Firms Providing Services Related to Newport Banning Ranch
Development
APPLICANT: Newport Banning Ranch, LLC
RECOMMENDATION:
Receive and file.
DISCUSSION:
In accordance with Council Policy F -14 (Authority to Contract for Services), the City
Manager is required to provide notice of a permit application and a brief description of
the proposed project to the City Council when a contract for professional services is
paid for by funds in an applicant deposit account and the total cost for services exceeds
$100,000.
Newport Banning Ranch, LLC has filed an application for a Planned Community
Development Plan, Master Development Plan, Zoning Code Amendment, and Tentative
Tract Map to allow development of the Banning Ranch property as allowed in the
General Plan. The application also requires the approval of an amendment to the City's
General Plan Circulation Element and may require an amendment to the Orange
County Master Plan of Arterial Highways (MPAH). The proposed development would
include up to 1,375 residential units, 75,000 square feet of commercial use, 75
overnight accommodations, approximately 52.3 acres of parks and approximately 251.6
acres of open space.
The City has entered into professional services agreements with various consultants to
provide planning, engineering, project management, and environmental services for the
Newport Banning Ranch project. As the project has advanced, the City has identified
PSA with Consulting Firms for Newport Banning Ranch
January 12, 2010
Page 2
additional services, over and above the scope of services approved in the initial
consultants' agreements, which are required in order to complete certain aspects of the
project. Pending City Attorney review and approval, staff intends to execute
amendments to the agreements for the project consultants as follows. The
amendments are attached and the original agreements are available for review in the
Planning Department.
AECOM
The engineering firm of AECOM currently has an agreement with the City in an amount
not to exceed $28,500 for preparation of a water supply assessment report for the
Newport Banning Ranch project. Additional tasks have been identified in order to
complete the consultant report due to the need to include updated data on the City's
recent year's water demand, the City's updated Water Conservation Ordinance, and to
incorporate applicant proposed changes to the residential mix and on -site water
facilities plan of the project.
The amendment for the additional scope of work is for an amount not to exceed
$19,200.00 bringing the total contract to an amount not to exceed $47,700.00.
Bon Terra Consulting
BonTerra Consulting currently has an agreement and one amendment to the
professional services agreement with the City for preparation of a screencheck and
Draft EIR for the project. The current agreements include technical report preparation
by subconsultants for traffic, air toxics health risk assessment, and visual simulations of
the project in support of the EIR. Additional subconsultant tasks have been identified as
a result of modifications to the project proposed by the applicant, and the need for
additional technical and project team meetings not anticipated in the original scope of
work. Additional subconsultant tasks include additional traffic analysis due to an
applicant proposed change in the mix of residential land uses, additional visual
simulations due to modifications to the proposed project roadways and the applicant's
proposed alternative for a pedestrian bridge crossing West Coast Highway, and an
expanded air toxics and human health risk analysis in response to City and applicant
comments on the initial subconsultant work product.
The approved agreement and first amendment are for an amount not to exceed
$1,396,700.20. This does not include an amount for responses to comments on the
Draft EIR, as the level of effort is not known yet. The second amendment for the
additional subconsultant scope of work is for an amount not to exceed $69,377.00
bringing the total contract to an amount not to exceed $1,466,077.20. It should be
noted that this amendment is for subconsultants only, and staff also anticipates a
request from Bon Terra to amend their own scope of services to include the new
subconsultant analyses in the screencheck EIR sections that had already been started.
PSA with Consulting Firms for Newport Banning Ranch
January 12, 2010
Page 3
Linn & Associates
Linn & Associates currently has an agreement to provide contract planning and project
management consulting services on an hourly "time and materials" basis in conjunction
with the processing of planning applications as requested by the City. Services
provided pursuant to the current agreement have included 1) application review, staff
analysis, staff report preparation, and public hearing presentations for various group
home applications and 2) application review, interdepartmental coordination, CEQA
documentation monitoring, project scheduling, and consultant team management for the
Newport Banning Ranch project. Additional project management and planning review
services have been identified in order to continue the processing of the Newport
Banning Ranch project, including but not limited to review and monitoring of on -going
revisions to project application documentation, review and monitoring of the
screencheck and Draft EIR, attendance at technical meetings and project team
meetings, coordination of project consultant work efforts, attendance at public meetings,
staff analysis and preparation of staff reports, attendance and presentation at public
hearings.
The approved agreement is for services to be provided on an hourly "time and
materials" basis rather than a "not to exceed" amount and a budget of $150,000 was
authorized. The amendment is for an additional scope of work to be provided on an
hourly "time and materials" basis for an authorized budget amount of $90,000 bringing
the total authorized budget amount to $240,000.00.
RBF Consulting
RBF Consulting currently has an agreement to provide traffic and engineering services
for the Newport Banning Ranch project which includes providing contract traffic
engineering and development review services, reviewing the work product of the project
traffic consultant preparing the EIR traffic report, reviewing transportation and circulation
issues associated with the project, reviewing and making recommendations on road
alignments, intersection configurations and street sections, coordinating and
participating with the OCTA on any potential amendments to the MPAH, preparing
analyses and reports as required, and monitoring schedules. Additional services have
been identified due to an expanded scope of services to provide technical support in the
review of issues related to the applicant's subdivision map application for the project
The approved agreement is for services to be provided on a "time and expenses" basis
in an amount not to exceed $100,000. The amendment for the additional scope of work
on a "time and expenses" basis is for an amount not to exceed $85,000 bringing the
total contract to an amount not to exceed $185,000.00.
PSA with Consulting Firms for Newport Banning Ranch
January 12, 2010
Page 4
Environmental Review:
Retention of consultants is not a projected as defined by CEQA.
Funding Availability:
The entire cost of these consulting services will be reimbursed to the City by the
applicant, Newport Banning Ranch, LLC.
Submitted by:
4t-4�-
Sharon Wood
Assistant City Manager
AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH
AECOM USA Inc.
FOR NEWPORT BANNING RANCH
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 12th day of January, 2010, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "CITY "), and AECOM USA, Inc., a
California Corporation whose address is 7807 Convoy Court Suite 200, San Diego,
California 92111 ( "CONSULTANT'), and is made with reference to the following:
RECITALS:
A. On March 17, 2009, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT," for engineering
services for the Newport Banning Ranch, hereinafter referred to as `PROJECT."
B. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional services
not included in the AGREEMENT, to extend the term of the AGREEMENT and to
increase the total compensation.
C. CITY desires to compensate CONSULTANT for additional professional services
needed for PROJECT.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1," as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of the AGREEMENT shall be extended to December 31, 2010.
2. ADDITIONAL SERVICES TO BE PERFORMED
In addition to the services to be provided pursuant to the AGREEMENT,
CONSULTANT shall diligently perform all the services described in
AMENDMENT NO. 1 including, but not limited to, all work set forth in the Scope
of Services attached hereto as Exhibit A and incorporated herein by reference.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. COMPENSATION
City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached to the AGREEMENT. Consultant's total amended
compensation for all work performed in accordance with this Agreement,
excluding all reimbursable items and all subconsultant fees, shall not exceed
Forty Thousand Sev en Hundred Dollars and no /100 ($47,700.00) without
prior written authorization from City,
3.1 The amended compensation reflects Consultant's additional
compensation for additional services to be performed in accordance with
this AMENDMENT NO. 1, excluding all reimbursable items and all
subconsultant fees, in an amount not to exceed Nineteen Thousand Two
Hundred Dollars and no /100 ($19,200.00), without prior written
authorization from City.
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
2
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
0
Assistant City Attorney
ATTEST:
In
Leilani I. Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
City Manager
CONSULTANT: AECOM USA Inc.
0
(Corporate Officer)
Title:
Print Name:
By:
(Financial Officer)
Title:
Print Name:
Attachments: Exhibit A — Additional Services to be Performed
3
Exhibit "A"
SCOPE OF SERVICES
Consultant will provide the following additional services
Prepare a Second Draft Water Supply Assessment Report incorporating the
following additional information:
• City of Newport Beach updated draft water conservation ordinance.
• City of Newport Beach yearly demand and supply records.
• Research results of recent publications regarding the statewide drought and the
ongoing efforts to mitigate imported supply losses.
• Research results of revised project unit demand factors.
• Meet with the City and collect comments.
Prepare a Third Draft Submittal Water Supply Assessment Report incorporating the
following additional data:
• City FY 08 -09 demand data.
• Revised land -use and unit counts for the project per the applicant's revised
project. Update demand projections and report figures.
• Revised site facility plans per applicant revised project.
• Final adopted water conservation ordinance.
• Narrative summary of tAFCO input regarding Mesa Consolidated Water
District.
• City annexation agreement / contracts with OCWD.
• MWD's Bond Disclosure Statement.
3, Attend meeting with the City and collect comments.
4, Prepare a Final Water Supply Assessment Report based on staff and applicant
comments.
5. Attend City Council meeting and assist staff with any technical questions.
0
AMENDMENT NO. 2
TO
PROFESSIONAL SERVICES AGREEMENT WITH
BON TERRA CONSULTING
FOR NEWPORT BANNING RANCH
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 12th day of January, 2010, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "CITY "), and Bon Terra Consulting, a
LLC, whose address is 151 Kalmus Drive, Suite E -200, Costa Mesa, California 92626
( "CONSULTANT "), and is made with reference to the following:
RECITALS:
A. On March 20, 2009, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT," for
environmental services for the Newport Banning Ranch, hereinafter referred to
as "PROJECT."
B. CITY and CONSULTANT have entered into one separate AMENDMENT of the
AGREEMENT, the latest dated July 14, 2009.
C. CITY desires to enter into this AMENDMENT NO. 2 to reflect additional services
not included in the AGREEMENT, or prior amendments, to increase the total
compensation.
D. CITY desires to compensate CONSULTANT for additional professional services
needed for PROJECT.
E. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 2," as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. ADDITIONAL SERVICES TO BE PERFORMED
In addition to the services to be provided pursuant to the AGREEMENT and
AMENDMENT NO, 1, CONSULTANT shall diligently perform all the services
described in AMENDMENT NO. 2 including, but not limited to, all work set forth
in the Scope of Services attached hereto as Exhibit A and incorporated herein by
reference. The City may elect to delete certain tasks of the Scope of Services at
its sole discretion.
3. COMPENSATION
City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached to the AGREEMENT. Consultant's total amended
compensation for all work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed One
Million Four Hundred Sixty Six Thousand Seventy Seven Dollars and
no /100 ($1,466,077.20) without prior written authorization from City,
3.1 The amended compensation reflects Consultant's additional
compensation for additional services to be performed in accordance with
this AMENDMENT NO. 2, including all reimbursable items and
subconsultant fees, in an amount not to exceed Sixty Nine Thousand
Three Hundred Seventy Seven Dollars and no /100 ($69,377.00), without
prior written authorization from City.
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
2
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 2
on the date first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
M
Assistant City Attorney
ATTEST:
LIM
Leilani I. Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
M
City Manager
CONSULTANT:
BON TERRA CONSULTING
0
Title:
Print Na
(Corporate Officer)
(Financial Officer)
Print Name:
Attachments: Exhibit A — Additional Services to be Performed
3
Exhibit "A"
SCOPE OF SERVICES
Consultant shall perform the following Additional Services in support of the project EIR:
Traffic Study
1. Develop average daily traffic (ADT) forecasts for all study scenarios for all
roadway segments in the study area.
2. Revise intersection analysis and ADT forecasts to reflect the applicant project
revisions submitted to the City in November 2009.
3. Update traffic report to incorporate the revised forecasts and Level of Service
results.
4. Prepare a "Special Issues" discussion to address daily traffic volume forecasts
and project impact in the Southwest Costa Mesa area.
5. Conduct freeway mainline analysis for all study scenarios through Year 2015
Cumulative.
6. Conduct analysis of alternative lane configurations for the main project entry at
West Coast Highway.
7. Evaluate applicant's November 2009 revised project land use proposal with
respect to impacts on up to 8 intersections. Forecast volumes will be reviewed
with respect to flow conservation to and from adjacent intersection forecast
volumes. Forecasts will also be compared across all project alternative scenarios
and to previous analysis reasonableness.
8. Conduct Intersection Capacity Utilization (ICU) analysis for the 8 study
intersections.
9. Identify daily traffic volumes for study area roadways.
10. Aftendance of traffic consultant at 15 additional technical meetings and 8
additional team meetings.
Visual Simulations
1. Prepare alternative view simulations as part of the EIR aesthetics analysis for
three additional project views including:
• Alternative locations for the resort hotel and residential land use
• Proposed alternative location for pedestrian bridge over West Coast Highway
• Alternative views of project roadway intersection at 19" Street.
Air Toxic Health Risk Assessment
1. Prepare Revised Toxic Air Contaminant JAC) Emission Inventories
TAG emission inventories will be revised to address comments received from the
City and applicant review of the second Draft HRA memorandum, Key changes will
include the addition of a tractor mower to the existing oilfield fleet of equipment
based on applicant input, incorporation of the applicant proposed revised number of
dwelling units in specific portions of the project area, and subsequent incorporation
of revised traffic analysis project trip rates per the traffic study.
3
2. Conduct Air Dispersion Modeling of Revised TAC Emissions
Using the revised TAC emissions developed in 1, the dispersion of TACs will be
analyzed using AERMOD, as described in the modeling protocol, to estimate annual
average ground level concentrations. Pollutant concentration or health risk contour
plots (isopleths) will not be developed as part of this task.
3. Conduct Human Health Risk Assessment of Revised TAC Concentrations
Using the revised TAC concentrations developed in Task 2, the potential incremental
chronic cancer risks and non - cancer hazards associated with the proposed project
future scenario will be evaluated for the set of critical receptors developed under the
original scope of work, dated May 29, 2009. Health risk isopleths currently are not
included in this scope.
4. Incorporate Revisions into Documentation
The revised findings of the Air Toxic Health Risk Assessment will be incorporated
into a third Draft Health Risk Assessment technical memorandum for incorporation
into the Draft EIR.
1.7
AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH
DEBORAH LINN d.b.a. LINN & ASSOCIATES
FOR NEWPORT BANNING RANCH
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 12th day of January, 2010, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "CITY "), and Deborah Linn doing
business as Linn & Associates, whose address is 826 Molino Avenue, Long Beach,
California 90804 ( "CONSULTANT'), and is made with reference to the following:
RECITALS:
A. On April 21, 2008, CITY and CONSULTANT entered into a Professional Services
Agreement, hereinafter referred to as "AGREEMENT," for engineering services
for the Newport Banning Ranch, hereinafter referred to as "PROJECT."
B. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional services
not included in the AGREEMENT, to extend the term of the AGREEMENT and to
increase the total compensation.
C. CITY desires to compensate CONSULTANT for additional professional services
needed for PROJECT.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1," as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of the AGREEMENT shall be extended to December 31, 2010.
2. ADDITIONAL SERVICES TO BE PERFORMED
In addition to the services to be provided pursuant to the AGREEMENT,
CONSULTANT shall diligently perform all the services described in
AMENDMENT NO. 1 including, but not limited to, all work set forth in the Scope
of Services attached hereto as Exhibit A and incorporated herein by reference.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. COMPENSATION
City shall pay Consultant for the services on a time and expense basis in
accordance with the provisions of this Section and the Schedule of Billing Rates
attached to the AGREEMENT. Consultant's total amended compensation for all
work performed in accordance with this Agreement, shall not exceed Two
Hundred Forty Thousand Dollars and no /100 ($240,000.00) without prior
written authorization from City,
3.1 The amended compensation reflects Consultant's additional
compensation for additional services to be performed in accordance with
this AMENDMENT NO. 1, including all reimbursable items and all
subconsultant fees, in an amount not to exceed Eighty Five Thousand
Dollars and no 1100 ($90,000.00), without prior written authorization from
City.
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
2
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
0
Assistant City Attorney
ATTEST:
0
Leilani I. Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
M
City Manager
CONSULTANT: LINN & ASSOCIATES
(Corporate Officer)
Print Name:
(Financial Officer)
Print Name:
Attachments: Exhibit A — Additional Services to be Performed
K
Exhibit "A"
SCOPE OF SERVICES
Consultant will provide the following additional services:
Additional project management and planning review services provided to the City
of Newport Beach in conjunction with the processing of the Newport Banning
Ranch development including but not limited to the following tasks:
1. On -going review of revisions to project application materials.
2. Review of Screencheck and Draft EIR.
3. Preparation of project schedules and memorandae.
4. Coordination of and attendance at bi- weekly project team meetings.
5. Monitor and coordinate work effort of City consultant team.
6. Attend project technical meetings with City's and applicant's consultant
team.
7. Review and comment on project documentation provided by applicant and
EIR consultant.
8. On -going coordination with City Planning Department and City Manager's
Office on document review, resolution of issues, and project schedule
monitoring.
9. Attend community meetings and public workshops as requested.
10. Preparation of staff reports for Planning Commission and City Council.
11. Attendance at public hearings and presentation of reports to public bodies.
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AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH
RBF CONSULTING
FOR NEWPORT BANNING RANCH
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 12th day of January, 2010, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "CITY "), and RBF Consulting, whose
address is 14725 Alton Parkway, Irvine, California 92618 -2027, P.O. Box 57057, Irvine,
California 92619 -7057 ( "CONSULTANT "), and is made with reference to the following:
RECITALS:
A. On June 17, 2009, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT," for traffic
engineering and development review services for the Newport Banning Ranch,
hereinafter referred to as "PROJECT."
B. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional services
not included in the AGREEMENT, to extend the term of the AGREEMENT and to
increase the total compensation.
C. CITY desires to compensate CONSULTANT for additional professional services
needed for PROJECT.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1," as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of the AGREEMENT shall be extended to December 31, 2010.
2. ADDITIONAL SERVICES TO BE PERFORMED
In addition to the services to be provided pursuant to the AGREEMENT,
CONSULTANT shall diligently perform all the services described in
AMENDMENT NO. 1 including, but not limited to, all work set forth in the Scope
of Services attached hereto as Exhibit A and incorporated herein by reference.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. COMPENSATION
City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached to the AGREEMENT. Consultant's total amended
compensation for all work performed in accordance with this Agreement,
excluding all reimbursable items but including all subconsultant fees, shall not
exceed One Hundred Thousand Eighty Five Dollars and no /100 ($185,000)
without prior written authorization from City,
3.1 The amended compensation reflects Consultant's additional
compensation for additional services to be performed in accordance with
this AMENDMENT NO. 1, excluding all reimbursable items but including
all subconsultant fees, in an amount not to exceed Eighty Five Thousand
Dollars and no /100 ($85,000.00), without prior written authorization from
City.
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
M
Assistant City Attorney
ATTEST:
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Leilani I. Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
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City Manager
CONSULTANT: RBF CONSULTING
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(Corporate Officer)
Title:
Print Name:
0
(Financial Officer)
Print Name:
Attachments: Exhibit A — Additional Services to be Performed
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Exhibit "A"
SCOPE OF SERVICES
Consultant will provide the following additional services:
Consultant will provide additional contract traffic engineering and development
review services to the City of Newport Beach in conjunction with processing of
the Newport Banning Ranch development. Mike Erickson will function on behalf
of the City Public Works Department during the review of the development
subdivision map application, coordinating the preparation of the traffic report in
support of the Newport Banning Ranch EIR, reviewing the work product of the
project traffic consultant, reviewing transportation and circulation issues
associated with the project, reviewing and making recommendations on road
alignments, intersection configurations and street sections, coordinating with
OCTA during the processing of the project by the City and on any required
cooperative MPAH study, preparing analyses and reports as required, monitoring
schedules and taking actions as are necessary and appropriate to ensure that
City- required reviews and actions take place in a timely manner.
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PROFESSIONAL SERVICES AGREEMENT WITH
DEBORAH LINN d.b.a. LINN & ASSOCIATES FOR PLANNING SERVICES
THIS AGREEMENT is made and entered into as of this 21`t day of April, 2008,
by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City's, and DEBORAH LINN doing business as LINN & ASSOCIATES,
whose address is 826 Molino Avenue, Long Beach, California 90804
("Consultant), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duty 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
planning staff services upon the terms and conditions contained in this
Agreement.
C. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this
Agreement.
E. The principal member of Consultant for purposes of Project shall be
Deborah Linn.
F. City has solicited and received a proposal from Consuttant, has reviewed
the previous experience and evaluated the expertise of Consultant, and
desires to retain Consuttant to render professional services under the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
TERM
The term of this Agreement shall commence on the above written date, and
shall terminate on the 2111 day of April, 2010, unless terminated earlier as
set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope
of Services attached hereto as Exhibit A and inoogxx-ated herein by
3.
4.
reference. The City may elect to delete certain tasks of the Scope of
Services at its sole discretion.
TIME OF PERFORMANCE
Time is of the essence in the performance of services under this
Agreement and Consultant shall perform the 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.
Notwithstanding the foregoing, Con!
delays due to causes beyond Consul
in the case of any such delay in t
Project, each party hereby agrees to
that all delays can be addressed.
ultant shall not be responsible for
ant's reasonable control. However,
ie services to be provided for the
provide notice to the other party so
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.
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
Billing Rates attached hereto as Exhibit B, both Incorporated herein by
reference. Consultant's compensation for all work performed in
accordance with this Agreement, including all reimbursable items and
suboonsultant fees, shall not exceed One Hundred Fifty Thousand
Dollars and no1100 ($160,000) without additional 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 person who performed the work, a brief
description of the services performed and/or the specific task in the
Scope of Services to which it relates, the date the services were
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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.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved 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 servioes 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 oompensaWn for Extra Work
performed without the prior written authorization of City. As used
herein, 'Extra Work" means any work that is determined by City to
be necessary for the proper completion of the Project, but which is
not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of
this Agreement Compensation for any authorized Extra Work shall
be paid in accordance with the Schedule of Billing Rates as set
forth in Exhibit B.
ti. PROJECT MANAGER
Consultant has designated Deborah Linn as Project Manager, who shall
coordinate all phases of the Project. This Project Manager shall be
available to City at all reasonable times during the Agreement term.
Consultant 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 fumish the
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necessary personnel to complete the Project on a timely basis as
contemplated by this Agreement
8. ADMINISTRATION
This Agreement will be administered by the Planning Department Patrick
J. Alford shall be the Project Administrator and shall have the authority to
act for City under this Agreement. The Projed 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'.
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 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
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legally required of Consultant to practice its profession. Consultant
shall maintain a City of Newport Beach business license during the
tern of this Agreement.
0.3 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 ads of God, or
the failure of City to furnish timely information or to approve or
disapprove Consultants work promptly, or delay or faulty
performance by City, contractors, or governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shah indemnify, defend
and hold harmless City, Its City Council, boards and commissions,
officers, agents and employees (oollectively, the 'Indemnified Parties')
from and against any and all claims (including, without limitation, claims
for bodily injury, death or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including, without limitation,
attorneys fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a Claim; collectively, °Claims'), which may arise
from or In any manner relate (directly or indirectly) to any work performied
or services provided under this Agreement (including, without limitation,
defects in workmanship or materials and/or design defects [if the design
originated with Consultant]) or Consultants presence or activities
conducted on ft 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 attorneys fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless
of whether any insurance policies are applicable. The policy limits do not
act as a limitation upon the amount of indemnification to be provided by
the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor
basis and Consultant is not an agent or employee of City. The manner
and means of conducting the work are under the control of Consultant,
except to the extent they are limited by statute, rule or regulation and the
expressed terns 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.
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 POUCY
Consultant shall discuss and review all matters relating to policy and
Project direction with City's Project Administrator in advance of ah 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 and /or
his/her duty 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
oommwK*rnent of work. Consultant shah 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
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performance or issuance of any perfnit 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. AN 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.
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 Imitation, 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.
ii. 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 four hundred
and fifty thousand dollars ($450,000) combined single limit
for each occurrence.
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,
Imes, 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 shad 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. PROHIBMON AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the servioes 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
f✓
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.
16. SUBCONTRACTING
City and Consultant agree that subconsultants may 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. Consultant
shall be fully responsible to City for all acts and omissions of the
subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and subcontractor nor shall it create any
obligation on the part of City to pay or to see to the payment of any monies
due to any such subcontractor other than as otherwise required by law.
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.
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18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be
kept confidential unless City authorizes in writing the release of
information.
19. 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 Consultants
drawings and specifications provided under this Agreement.
20. 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 haw, from the date of final payment to Consultant under this
Agreement. All such records and invoices shall be dearly identifiable.
Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business
hours. Consultant shall allow Inspection of all work, data, Documents,
proceedings and activities related to the Agreement for a period of three
(3) years from the date of final payment to Consultant under this
Agreement
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until
satisfaction of the dispute with respect to such payment. Such
withholding shall not be deemed to constitute a failure to pay according to
the terms of this Agreement Consultant shall not discontinue work as a
result of such withholding. Consultant shall have an immediate right to
appeal to the City Manager or 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.
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22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or
professional inexperience of Consultant which result in expense to City
greater than what would have resulted if there were not errors or
omissions in the work accomplished by Consultant, the additional design,
consft tion and/or restoration expense shall be bome by Consultant.
Nothing In this paragraph is intended to limit Chys rights under any other
sections of this Agreement
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project
24. CONFLICTS OF INTEREST
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.
25. 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. AN
notices, demands, requests or approvals from Consultant to City shall be
addressed to City at:
Attn: Patrick J. Afford.
Planning Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 -644 -3200
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Fax 949 -644 -3229
All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at
Attn: Deborah Linn
Linn & Associates
826 Molino Avenue
Long Beach, CA 90804
Phone: (562) 433 -9444
Fax: (582) 433 -7190
26. TERMINATION
In the event that either party far3s 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-cJefaulting 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 arty 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.
27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or
hereinafter enacted. In addition, all work prepared by Consultant shall
conform to applicable City, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the
Project Administrator and City.
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28. 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.
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.
30. 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.
31. 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.
32. 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.
33. CONTROLLING LAW AND VENUE
The laws of the State of Cal'ifomia 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.
33. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall
not discriminate against any subcontractor, employee or applicant for
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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.
APPROVED AS TO FORM:
By: C-t.� C
City Attorney
for the City of Newport Beach
CITY OF NEWPORT BEACH
A Municipal Corporation j
By:
ity Manager
for the City of Newport Beach
ATTEST: CONSULT T:
By ( y ,cap F, By
LaV nn Harkle s, j� a �; Deborah Linn, Pri cipal
City Clerk;„ Linn and Associates
Attachments: Exhibit A - Scope of Services
Exhibit B — Schedule of Hourly Rates
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EXHIBIT °A"
SCOPE OF SERVICES
Deborah Linn d.b.a. Linn & Associates will provide contract planning and project
management services to the City of Newport Beach in conjunction with processing
of planning applications. Deborah Linn 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 CEQA document
preparation, preparing staff analyses and reports for Planning Commission and
City Counci 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, Deborah Unn's services will be provided on a 'time and
materials' basis. Houry rates are included as Exhibit 'B ". For budgeting
purposes, $150,000 is authorized for this contract based on an average of fifty
(50) Project Manager hours per month during the term of this agreement.
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EXHIBIT "B"
SCHEDULE OF HOURLY RATES
DEBORAH LINN
$125 per hour
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CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 15
March 25, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David Lepo, Planning Director
Planning Department
949/844 -3228, dlepo @ city.newport- beach.ca.us
SUBJECT: Professional Services Agreement for contract planning services.
RECOMMENDATIONS
1) Approve a Professional Services Agreement with Deborah Linn d.b.a. Linn &
Associates of Long Beach, California, for contract planning services in an amount
not to exceed $150,000; and
2) Authorize City Manager and City Clerk to sign Agreement.
DISCUSSION
During the next twelve months, senior staff in the Planning Department will continue to
work on the update and implementation of the Zoning Code, revision of the Coastal Land
Use Plan, and preparation of the Implementation Plan for the Local Coastal Program.
Several large and complex project applications are also expected to be submitted for
processing during this time. These inckxie the Banning Ranch entitlement application and
the Conexant and Koll development proposals in the airport area. The Planning
Department proposes to assign contract planners as needed to assist in processing these
projects. Costs for contract plainners will be paid from trust accounts funded by the
respective project applicants.
Deborah Linn of Linn and Associates has submitted a proposal to provide contract planner
services to the Planning Department, primarily for the Banning Ranch project. The
Professional services agreement is attached for City Council consideration. The
agreement provides up to 1,200 hours of contract planning services over the next twenty -
four months at a rate of $125 per hour, for a total contract amount not to exceed $150,000.
• Deborah Unnfontract planning Services
March 25, 2008
Page 2
Contract planning services to be provided under terms of the professional services
agreement with Deborah Linn of Linn Associates will be paid from funds deposited in
Project trust accounts by respective project applicants.
Submitted by:
Attachments: 1. Draft Professional Services Agreement with Deborah Linn
PROFESSIONAL SERVICES AGREEMENT WITH
DEBORAH LINN d.b.a. LINN & ASSOCIATES FOR PLANNING SERVICES
THIS AGREEMENT is made and entered into as of this 26"' day of March, 2008,
by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
("City"), and DEBORAH LINN doing business as LINN & ASSOCIATES,
whose address is 826 Moino Avenue, Long Beach, California 90804
("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 Caifomia
and the Charter of City.
B. City desires to engage Consultant to provide project management and
planning staff services upon the terns and conditions contained In this
Agreement.
C. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this
Agreement.
E. The principal member of Consultant for purposes of Project shall be
Deborah Linn.
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
terns and conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
TERM
The term of this Agreement shall oommerwe on the above written date, and
shall terminate on the 251h day of March, 2010, unless terminated earlier as
set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope
of Services attached hereto as Exhibit A and incorporated herein by
reference. 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 timely manner as
necessary for the City of Newport Beach to cornply 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.
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
fen (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
Billing Rates attached hereto as Exhibit B, both incorporated herein by
reference. Consultant's compensation for all work performed in
accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed One Hundred Fifty Thousand
Dollars and no/100 ($150,000) without additional authorization from City.
No billing rate changes shall be made during the tens 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. Consultants bills shall
include the name of the person who performed the work, a brief
description of the services performed and/or the specific task in the
Scope of Services to which it relates, the date the services were
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pertomned, 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.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved 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 suboonsultants 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 shah
be paid in accordance with the Schedule of Billing Rates as set
forth in Exhibit B.
PROJECT MANAGER
Consultant has designated Deborah Linn as Project Manager, who shah
coordinate all phases of the Project. This Project Manager shall be
available to City at all reasonable times during the Agreement term.
Consultant shah 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
.quest of City. Consultant warrants that It will continuously furnish the
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necessary personnel to complete the Project on a timely basis as
contemplated by this Agreement.
S. ADMINISTRATION
This Agreement will be administered by the Planning Department Patrick
J. Afford shall be the Project Administrator and shall have the authority to
act for City under this Agreement. The Project Administrator or histher
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 W.
T. 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 copy of all
existing relevant information on file at City. City win provide an 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 an
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 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 kKiermnify, 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 Imitation, 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 oosts) of every kind and nature
whatsoever (individually, a Claim; collectively, 'Claims'), which may arise
from or in any manner relate (directly or indirectly) to any work performed
or services provided under this Agreement (including, without limitation,
defects in workmanship or materials and/or design defects [d the design
originated with Consultant]) 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 attorneys fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless
of whether any insurance policies are applicable. The policy limits do not
act as a limitation upon the amount of indemnification to be provided by
the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor
basis and Consultant is not an agent or employee of City. The manner
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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 Consultants
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. AnyMing 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.
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 and/or
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 Consultants 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
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performance or issuance of any permit Current certification of
insurance shall be kept on file with Cdys 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 Insu►ers. 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 Citys Risk Manager.
Workers' Compensation CQyeraoe . 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.
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 forth 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, hked, 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:
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.
ii. This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officals,
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.
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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 Notke 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. AddWnal tnsurarce. 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 ootenent if Consultant is
a partnership or joint - venture or syndicate or ootenancy, 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°A) or more of the
assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
City and Consultant agree that subconsultants may be used to complete the
work outlined in the Scope of Services. The subconsuttants authorized by
City to perform work on this Project are identified in Exhibit A. Consultant
shall be fully responsible to City for all ads and omissions of the
subcontractor. Nothing in this Agreement shag create any contractual
relationship between City and subcontractor nor shall it create any
obligation on the part of City to pay or to see to the payment of any monies
due to any such subcontractor other than as otherwise required by law.
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 U responsibility for such changes unless
City has given Consultant prior notice and has received from Consultant
written consent for such changes.
18. 'CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be
kept confidential unless City authorizes in writing the release of
information.
19. 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.
20. 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
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Agreement All such records and invoices shall be dearly identifiable.
Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business
hours. Consultant shall allow inspection of all work, data, Documents,
proceedings and activities related to the Agreement for a period of three
(3) years from the date of final payment to Consultant under this
Agreement
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until
satisfaction of the dispute with respect to such payment. Such
withholding shall not be deemed to constitute a failure to pay according to
the terms of this Agreement. Consultant shall not discontinue work as a
result of such withholding. Consultant shall have an immediate right to
appeal to the City Manager or hisftr designee with respect to such
disputed sums. Consultant shall be entitled to receive interest on any
withheld sums at the rate of return that City earned on its investments
during the time period, from the date of withholding of any amounts found
to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or
professional inexperience of Consultant which result in expense to City
greater than what would have resulted if there were not errors or
omissions in the work accomplished by Consultant, the additional design,
constnxxion and/or restoration expense shall be bome by Consultant.
Nothing in this paragraph is intended to limit City's rights under any other
sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFUCTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
Callfomia 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.
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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 tenninatian of this Agreement by City. Consultant shall
Indemnify and hold harmless City for any and all claims for damages
resulting from Consultant's violation of this Section.
25. NOTICES
AN 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
Attn: Patrick J. Alford.
Planning Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 -544 -3200
Fax: 94944 -3229
All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attn: Deborah Linn
Linn & Associates
826 Molino Avenue
Long Beach, CA 90804
Phone: (562) 433 -9444
Fax: (562) 433 -7190
26. 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- defautting party may terminate the Agreement
forthwith by giving to the defaulting party written notice thereof.
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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 shad 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 effecttve 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.
27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or
hereinafter enacted. In addition, all work prepared by Consultant shall
conform to applicable City, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the
Project Administrator and City.
28. 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.
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.
30. 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 govem.
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31. 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.
32. SEVERABILITY
If any terra 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.
33. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and sit
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.
33. 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.
APPROVED AS TO FORM:
City Attorney
for the City of Newport Beach
ATTEST:
CITY OF NEWPORT BEACH,
A Municipal Corporation
City Manager
for the City of Newport Beach
CONSULTANT:
By: By:
LaVonne Harkless, Larry Hogle, President
City Clerk Hogle - Ireland, Inc.
Attachments: Exhibit A - Scope of Services
Exhibit B — Schedule of Hourly Rates
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EXHIBIT "A"
SCOPE OF SERVICES
Deborah Linn d.b.a. Lim & Associates will provide contract planning and project
management services to the City of Newport Beach In conjunction with processing
of planning applications. Deborah Linn 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 CEQA document
preparation, 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, Deborah Unn's services will be provided on a 'time and
materials' basis. Hourly rates are included as Exhibit TO. For budgeting
purposes, $150,000 is authorized for this contract based on an average of fifty
(50) Project Manager hours per month during the tern of this agreement.
15
EXHIBIT °B"
SCHEDULE OF HOURLY RATES
$125 per hour
U.".