Loading...
HomeMy WebLinkAboutC-4302 - PSA for Mark Park Project (& Environmental Consultanting Services for a General Plan Amendment at 328, 332, 336 Old Newport)AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH WENDY LOCKWOOD DBA SIRIUS ENVIRONMENTAL FOR MARINA PARK PROJECT THIS AMENDMENT NO. ONE TO PROFIONAL SERVICES AGREEMENT, is entered into as of this W� ay of ''Cbr ES , 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation "CITY"), and WENDY LOCKWOOD DBA SIRIUS ENVIRONMENTAL, a sole proprietorship whose address is 1478 North Altadena Dr., Pasadena, California 91107 ("CONSULTANT"), and is made with reference to the following: RECITALS: A. On September 22, 2009, CITY and CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "AGREEMENT," for preparation services of a Recirculated Draft EIR and Final EIR for the Marina Park Project, hereinafter referred to as "PROJECT." B. CITY desires to enter into this AMENDMENT NO. ONE to reflect additional services not included in the AGREEMENT and to increase the total compensation. 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. ONE," 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, CONSULTANT shall diligently perform all the services described in AMENDMENT NO. ONE 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. 2. 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 Ninety - One Thousand, Five Hundred Fifty -Five Dollars and no/100 ($91,555.00) without prior written authorization from City, 2.1 The amended compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this AMENDMENT NO. ONE, including all reimbursable items and subconsultant fees, in an amount not to exceed Seven Thousand, Two Hundred Fifty -Five Dollars and no/100 ($7,255.00), without prior written authorization from City. 3. 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. ONE on the date first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: net eBeWriney amp, Assistant City ATTEST: By: CITY OF NEWPORT BEACH, A Municipal Corpgration *'n G. Badum, c Works Director WENDY LOCKWOOD DBA SIRIUS ENVIRONMENTAL: By: IV). // 6 Wendy Lockod, Sole Propria or Attachment: Exhibit A — Additional Services to be Performed 2 EXHIBIT A Sirius Environmental January 15, 2009 Ms. Rosalinh M. Ung, Associate Planner City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Re: Marina Park REIR, Contract Amendment Dear Ros: As we have discussed, as a result of revising the document to change the approach to addressing wetlands, and to respond to unanticipated multiple sets of comments, the following additional costs were incurred: Wetland Approach Revisions Wendy Lockwood: 6 hours wetland revisions throughout the document (track changes), 2 hours conversations with staff, Rick Ware and TJ, 1 hour project management, 1 hour document proofing/finalization page numbers in T of C, 3 hours (mimimum) to prepare the document for the printer (remove track changes, PDF the sections, insert pdf graphics combine the document in to one PDF, load on to ftp site, provide print instructions to printer, proof print copy) 13 hours total x $185 = $2,405 Tom Johnson: 3 hours review of issues, discussions with WL and Rick Ware 5 hours review of EIR, proof changes made by WL 1 hour response to miscellaneous comments prior to publication 9 hours x $150/hr = $1,350 Wetland Revisions Sub Total: $3,755 1478 N. Altadena Drive, Pasadena, California 91107 626-808-0031 www.siriusenviromnental.com Sirius Environmental Ms. Rosalinh M. Ung January 15, 20010 Page 2 Multiple Sets of Cornments W. Lockwood: 10 hours x $185/hr = $1,850 T. Johnson: 11 hours x $150/hr = $1,650 Multiple sets of comments Sub Total = $3,500 Total: $7,255 Presuming you and David agree, please add this to our authorized contract amount. Any questions please do not hesitate to call. Yours sincerely, 4, Wendy Lockwood Principal IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: yne ch , Assistant City Attorney ATTEST: al Leilani Brown, City Clerk CITY OF EWP T EACH, A Muni r I Coa�jp r i U, _ M Edward Selich' Mayor for the City of Newport Beach CONSULTANT: 2 Sirius Environmental Title: Sole Proprietor Print Name: Wendv Lockwood Attachments: Exhibit A — Scope of Services Exhibit B — Billing Rate 14 33. 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. 34. 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. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. 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. APP OVED AS TO FORM: CITY OF NEWPORT BEACH, A Municip I Corporation �— By: Aaroh Harp omer Bludau Assistant City Attorney City Manager for the City of Newport Beach for the City of Newport Beach ATTEST: CONSULTANT: '0 By:AI��VVPp�A By: llz,�Ld Leilani Brown, J Wendy Lockw od City Clerk Attachments: Exhibit A — Scop Services & Costs F:\Users\PLN\Shared\Professional Services Agreements & Contracts\Old Newport GPA\Sirius- Old Newport Professional Service Agreement.doc 13 • f 4X - PROFESSIONAL SERVICES AGREEMENT WITH WENDY LOCKWOOD DBA SIRIUS ENVIRONMENTAL FOR MARINA PARK PROJECT THIS AGREEMENT is made and entered into as of this Z? day of September, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation( "City "), and WENDY LOCKWOOD, DOING BUSINESS AS (dba) SIRIUS ENVIRONMENTAL a sole proprietorship whose address is 1478 North Altadena Dr., Pasadena, CA, 91107( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to develop City-owned property commonly known as Marina Park at 1700 W. Balboa Boulevard. C. City desires to engage Consultant for preparation of the re- circulated draft EIR and the final EIR as outlined in the Sirius Environmental Scope of Services referenced as Exhibit "A" for the Marina Park Project ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of this Project, shall be Wendy Lockwood. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31 day of July, 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. 0 3. TIME OF PERFORMANCE • Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and 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 ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Eighty Four Thousand, Three Dollars and no /100 ($84,300) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) 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 writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: FA • r 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 shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Wendy Lockwood to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Planning Department. Rosalinh Ung, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. M 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 blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 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. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, 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 indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and rd • • against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or 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, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 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. i 0 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 Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Reguirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employers 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. 0 0 0 ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 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, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 7 • • vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 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. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 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 0 0 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. All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As -Built' drawings, and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. E 0 0 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or ill] • • restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, 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: Dave Webb Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3328 Fax: 949 - 644 -3328 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attn: Wendy Lockwood Sirius Environmental 1478 North Altadena Dr Pasadena, CA, 91107 Phone: 626-808-0031 Fax: 866-698-5178 11 0 28. TERMINATION 0 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 12 • • 32. 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. 33. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 34. 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. 35. 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. 36. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. i6'. • 0 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 A Mu By: yne ch Assistant City Attorney M ATTEST: Leilani Brown, City Clerk for the City of Newport Beach Title: Sole Proprietor Print Name: Wendy Lockwood Attachments: Exhibit A — Scope of Services Exhibit B — Billing Rate 0 • Sirius Environmental September 3, 2009 Mr. David Lepo, Planning Director Ms. Rosalinh M. Ung, Associate Planner City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Re: Proposed Scope of Work, Schedule and Costs to prepare a Recirculated Draft EIR (RDEIR) and Final EIR (PEER) for the Marina Park project Dear David and Ros: As we discussed, enclosed please find our proposed scope of work, schedule and costs to prepare a Recirculated Draft EIR and Final EIR for the Marina Park project. We look forward to working with you on this project. We understand the time- sensitive nature of the EIR and are committed to meeting your schedule. David and Ros, if you have any questions or would like me to expand on any aspect of the attached please call or send me an e -mail. Yours sincerely, Wendy Lockwood Principal 1478 N. Altadena Drive, Pasadena, California 91107 626- 808 -0031 www.siriusenvironmental.com Sirius Environmental 0 Proposal Marina Park Recirculated Draft EIR (RDEIR) Sirius Environmental September 3, 2009 Scope of Work Task 1: Revise Project Description. This task includes revising the project description to reflect the 3- phased project: Phase f: Removal of mobile homes (coaches), and replacement with a (rough) sand park (with temporary restrooms adjacent to the parking area); also addition of a new lifeguard tower on the beach. The boardwalk and shrubbery along the beach will be maintained. Phase 2: Replacement of the sand park with grass, conversion of the existing alley section into temporary metered public parking (still under consideration). Phase 3: As analyzed in the original Draft EIR: new park configuration with new basketball and tennis courts, new restrooms, reconfigured green space and parking, new children's play area, new Balboa Center multi - purpose building and sailing program, replacement Girl Scout house and new visiting vessel marina and general purpose marina. Additional detail on project elements will be brought in to the Project Description (e.g., number of pilings; design of the groin, seawall, and docks; potential marina circulation enhancement measures) in response to questions raised in agency comment letters. In particular the purpose and need for the new marina including the bulkhead and groin wall will be documented. The Project Description will also be augmented to include a description of project construction (including estimated duration of activities). Elements will include the anticipated pile driving techniques; dredge and fill quantities; dredging techniques; dredged material quality, disposal techniques, and locations; sand compatibility; tree removal timing and controls; construction -phase air and water pollution controls). These revisions will ensure that the impact analyses are properly set up and consistent with one another and that the full scope of project activities is disclosed, as it should be, in the Project Description. The Project Description will be augmented to include estimateslassumptions of operational phase activities used to analyze traffic and other issue areas (vehicular traffic, boat traffic, park visitors, etc.) that are currently scattered throughout the 1478 N. Altadena Drive, Pasadena, California 91107 626 - 808 -0031 www.siriusenvironmental.com 0 0 Sirius Environmental appendices and impact assessment tables. Elements requested in comment letters such as relevant details of a marina management plan (anti - fouling paints, marine mammal management); clarification of the function of the on -site cafe, and other details will be included. Task 2: Revise Environmental Setting, Impact Analyses and Mitigation Measures. The existing setting overview will be augmented to include information on existing water circulation, sediment contamination, and existing activities such as traffic, boating, visitors, etc. Most of this information is available in the technical appendices, and simply needs to be brought into the text. The CEQA baseline (conditions as of May 2008, date of the NOP) can then be clearly established. We also suggest a map showing the location of cumulative projects be included in the Traffic report (to be prepared by Austin Foust Associates) and in the EIR. This task includes incorporating all the new analyses to be received from technical consultants (wetland delineation, erosion /hazards, sand compatibility, traffic), as well as preparation of phased analyses of all issues. Additional noise and air quality modeling will be undertaken to reflect the phased project. In general, the impact sections will be revised to make them more consistent with one another in format, style, and level of analysis; they should be edited for clarity, and amended to reflect the revised project description. The sections will include descriptions of baseline conditions for each issue area, as well as summaries of the project elements that could have impacts in those issue areas. The text of each impact section will be edited as necessary to separate setting and methodology from impact analysis. The impact analyses will be revised to compare the project to the CEQA baseline more clearly. Certain of the issue areas, discussed below, will need additional modifications. We would anticipate working closely with City staff to obtain additional information and clarification, as necessary. The mitigation measures will be revised, in consultation with City staff, to ensure that they are specific, feasible, and relevant. Task 2A. Aesthetics The analysis of the aesthetic issues will be augmented to emphasize the aesthetic benefits of the project (removal of the mobile home park and opening up of views) and to treat in more depth the features that would exceed permissible heights. The analysis will evaluate each phase. Task 2B. Air Quality Construction emissions for all three phases will be calculated and presented separately. Based on operational characteristics evaluated in the revised traffic study (being prepared under separate contract), operational emissions for the different phases will be discussed and modeled as appropriate. Greenhouse gas emissions will be quantified using the Urbemis model. The RDEIR will include a discussion of greenhouse gas (GHG) emissions compared to City of Newport Beach thresholds and any applicable criteria identified by State, or regional agencies (such as the Southern California Association of Governments — 0 0 Sirius Environmental SCAG, or the South Coast Air Quality Management District — SCAQMD). The GHG analysis will include consideration of both quantitative and qualitative factors (such as the potential for the park to provide recreational amenities to local residents thereby reducing vehicle miles travelled and GHG emissions, also any energy /water saving features of the project). Task 2C. Bioloav The setting section will include more detailed information on the wetlands status of the site, per the delineation undertaken by MBA. The impact assessment will be revised to provide more focus and detail concerning project impacts on fish habitat, especially EFH, invasive species, and eelgrass. As an example, the conversion of intertidal habitat to sub -tidal habitat is an impact on EFH. Although the project's footprint would be small, it is of concern primarily from a cumulative standpoint, since, as Newport Bay has developed to support recreational boating, beach and intertidal shoreline has been converted to bulkhead. The section will be augmented with a more thorough discussion of construction noise that takes into account recent NMFS guidance on underwater noise and marine mammals (National Marine Fisheries Service. 2003. Taking of Marine Mammals Incidental to Specified Activities; Construction of the East Span of the San Francisco - Oakland Bay Bridge. Notice of issuance of an incidental harassment authorization. 6E Federal Register 64595- 64609). This section will also include a summary of the biological assessment (to be prepared under separate contract) of the four sand disposal sites. (The full Biological Assessment of the four beaches will be included as an Appendix.) Task 2D. Cultural Resources Revisions to address the three - phased project are anticipated in this section. Task 2E. Land Use The land use section will be revised to clarify the relationship between the Coastal Act and the City of Newport Beach's Coastal Land Use Plan (Local Coastal Program), as well as to present a summary of the current status of the Coastal Land Use Plan and the implications for not having an adopted LCP (Coastal Development Permit from the Coastal Commission). The history of the City's interaction with the Coastal Commission on the LCP will be described. Of particular concern is the implications of the 2006 changes to the dredge, dike, and fill language of the Coastal Act. This revision is vital for the marina component of the project, and will be undertaken in close cooperation with City staff. Complete /augment comprehensive policy analysis of project compared to all applicable General plan policies. Task 2F. Hazards A Phase II Environmental Site Assessment (ESA) is underway for the Southern California Edison property (under separate contract) to characterize the potential contamination and identify any appropriate mitigation measures. The Phase II ESA will be summarized and incorporated in to the Recirculated Draft EIR. 0 0 Sirius Environmental Task 2G. Hydrology and Water Quality The water quality and hydrology section will be revised to address project phasing and incorporate information on existing and with - project coastal processes, i.e., shoreline erosion. Everest International (under separate contract), will prepare: 1) an opinion letter on coastal processes and potential impacts of the project, 2) a revision of the previous analysis conducted using the hydrodynamic and water quality model to reflect the change in groin wall, 3) a qualitative discussion of long -term water quality management in the marina as a result of increased population in the area and use of motors in the marina. Fuscoe Engineering (under separate contract) will provide further discussion on the evaluation of surface runoff on the land portion of the site (an evaluation of surface water runoff is included in the Preliminary Water Quality management Plan — WQMP). The section will also be revised to include more up -to -date information on the regulatory setting, per the RWQCB comments, including the status of regional TMDLs, the City's MS4 permit, the construction storm water permit, and the Basin Plan. We assume that Fuscoe and Everest will provide sufficient information to generally evaluate any potential for significant project- specific impacts on TMDLs. The impact analysis will incorporate more detail on the effects of construction pollution control measures, and will explain how the proposed marina would not introduce additional pollutants into the bay system (the vessels would come without the marina, but would be accommodated at offshore moorings). 2H. Noise Construction and operational impacts of the three - phased project will be evaluated based on construction equipment anticipated for all three phases and operational characteristics of all three phases analyzed in the traffic report. 21. Public Services Revisions to this section are anticipated to reflect the change to a three - phased project. 2J. Transportation The revised traffic analysis (being prepared under separate cover by Austin Foust Associates) to address the three - phased project will be summarized in the Recirculated Draft EIR.; It is assumed that the revised traffic analysis will include an updated list (and map) of cumulative projects. 2K. Utilities Revisions to this section are anticipated to reflect the change to a three - phased project. Task 3: Alternatives. This task includes revising the alternatives analysis to add substance and reflect the revised technical analyses. In addition the alternatives will be revised to reflect similar phasing to the project as appropriate. Discussion of an alternative site will be added. n 0 0 Sirius Environmental The alternatives analysis will be substantially augmented in order to ensure that CEQA's intent that "the EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project" (CEQA Guidelines 15126.6(d)). The range of alternatives in the draft Marina Park EIR is reasonable, but there is insufficient information on the impacts of those alternatives to support a meaningful comparison of the alternatives with the proposed project. More description will be provided concerning the key differences between the alternatives and the proposed project, and detailed descriptions, quantitative where feasible and necessary, of the impacts associated with those differences will be provided. Task 4: Comment/Response Matrix. This task includes preparation of a matrix summarizing comments received on the Draft EIR and where responses to those comments are located in the Recirculated Draft EIR. Task 5: General Editing. This task includes comprehensive review and editing and reformatting as needed of the entire document to improve readability and consistency (there will be substantial overlap between this task and Task 3, since they will be conducted at the same time, however, this task is needed even without changes to the project and addition of analyses). Chapters 1 (Introduction) and 2 (Executive Summary) will require minor editing to incorporate the revised project description and impact analyses, but will not require new studies or analyses. Task 6: Meetings and Hearings. This task includes three meetings with staff and attendance at three public meetings. Task 7: Response to Staff Comments, Preparation of Notice of Completion (NOC) and Notice of Availability (NOA) and Print Instructions. This task includes response to staff comments (one set of unified comments) on the screencheck Draft EIR. Given staff's substantial background in the project, their input will be sought early and often to reduce review time. A "proof copy" of the document will be submitted to City staff for their review prior to delivering to the printer. This task includes preparation of a print ready Recirculated Draft EIR and the NOC and NOA as well as providing print instructions to the printer. It does not include reproduction or mailing costs, or costs of posting notices at the County Clerk or in the newspaper. Task 8: Response to Public/Agency Comments and Preparation of Mitigation Monitoring and Reporting Program (MMRP). This task includes response to all publictagency comments and preparation of a Final EIR (Addendum Format) for staff review. This !ask also includes response to staff comments on the Final EIR. This task also includes preparation of a Mitigation Monitoring and Reporting Plan. This task includes preparation of a print -ready document (FEIR) as well as print instructions. it does not include reproduction or mailing costs, or costs of posting notices at the County Clerk or in the newspaper. It assumes 50 hours of Sirius staff time will be sufficient for this task. Task 9: Findings Preparation of Notice of Determination (NOD). This task includes preparation of the Findings of Fact and Statement of Overriding Considerations as well as the NOD. (It does not include the CDFG or other fees or costs associated with posting the NOD.) 0 Schedule Completion of all outside studies (Everest, Fuscoe, AFA): Submit Screencheck Draft REIR: Staff Review Completed: Revisions completed (proof copy available to staff October 30): Printing completed, publish Draft REIR: End of Comment Period: First Draft R to C /FEIR: Staff Review: Revisions completed: Publish Final EIR Certification 0 Sirius Environmental September 30, 2009 October 19, 2009 October 27, 2009 November 2, 2009 November 9, 2009 December 23, 2009 January 6, 2010 January 13, 2010 January 20, 2009 January 27, 2010 (Jan 29 latest) February 9, 2010 • Cost Estimate 0 Sirius Environmental TASK UNITS SUBTOTAL TOTAL Screencheck Draft EIR Task 1: Revise Project Description 32 hrs $5,000.00 Task 2: Revise Impact Analyses 160 hrs $24,000.00 Task 3: Re -write Alternatives 32 hrs $5,000.00 Task 4: Comment Matrix 16 hrs $2,400.00 Task 5: General Review Editing 100 hrs $15,000.00 Subtotal Screencheck. 340 hrs $51,400 Task 6: Meetings and Hearings 60 $10,000 Task 7: Response to Staff Comments, DEIR 50 $7,500 Print Instructions, NOC and NOA Task 8: Response to Public/Agency Comments, 50 $7,500 FEIR Print Instructions and MMRP Task 9: Findings, NOD 40 $6,400 TOTAL LABOR 540 $82,800 Other Direct Costs Mileage @ $0.55 per mile, misc other $1,500 TOTAL BUDGET: $84,300 7 Sirius Environmental BILLING RATES Cateaory Hourly Billing Rnfa Principal Managing Consultant Senior Consultant Associate Administrative / Graphics/Clerical $185.00 $150.00 $120.00 $90.00 $75.00 1478 N. Altadena Drive, Pasadena, California 91107 626 808 0031 www.siriusenviromnental.com 9 0 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 09/04/09 Dept. /Contact Received From: Shauna Oyler Date Completed: 09/08/09 Sent to: Shauna Company /Person required to have certificate: I. GENERAL LIABILITY A. B. C. By: Judy Villalobos Sirius Environmental INSURANCE COMPANY: Hartford Casualty Ins. Co. AM BEST RATING (A: VII or greater): A; XV ADMITTED Company (Must be California Admitted): Is Company admitted in California? D. LIMITS (Must be $1 M or greater): What is limit provided? E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (Completed Operations status does not apply to Waste Haulers) F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No $1 MM /$2MM /$2MM ® Yes ❑ No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No H. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence' wording? ❑ Yes ® No I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. 11. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: Hartford Casualty Insurance Co. B. AM BEST RATING (A: VII or greater) A; XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? Hired & NOA covg. only. $1 MM E. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers) :Is it included? ❑ Yes ® No F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers.only): Is it included? N/A ❑ Yes ❑ No G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. III. WORKERS' COMPENSATION NO WC COVERAGE INDICATED ON THE CERT. A. INSURANCE COMPANY: N/A B. AM BEST RATING (A: VII or greater): N/A C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): Is it included? ❑ Yes ❑ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Ed. 8 2009 ❑ Yes ® No GL: Al endt. is not specific to the City, as blanket Al applies as required by written contract. GL: Primary & Non - contributory endt. was not provided, yet included in policy form SS0008 0405, as required by written contract. Auto: Al endt and /or Auto policy form not provided. AC-ORD. CERTIFICATE OF LIABILITY INSURANCE P1D 09- 24 -T2009 P1ODUC'a' SANDER A KESSLER & ASSOC INC/ PHS 251280 P:(866)467-8730 F:(877)905-0457 P 0 BOX 33015 SAN ANTONIO TX 78265 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE `=VRED — WENDY LOCKWOOD DBA SIRIUS ENVIRONMENTAL 1478 N. ALTADENA DR. PASADENA CA 91107 INSURERA,Hartford Casualty Ins Cc INSURER R: INSURER C: INSURER O: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEFN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HF.REIN IS SURACT TO ALI THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH PD!IfICG AfY;RFTLATF I HAITC c11MNL' AAAV HAVc PFCA1 vcnl qcD cY PA.10 fl AIM, MSR M TYPE OF INSORAA'6E P POLICY NUMBER M MIL/CYEFFECT/VE P POIICYEXPIRA710M LIMITS GENERAL LIABILITY E EACH OCCURRENCE $ $1 1 000,000 j A R COMMERCIAL GENERAL LIABILUY 7 72 SBM NU1948 0 04/03/09 0 04/03/10 F FIRE DAMAGE IAny.ne Rrel $ $300 000 YES DIP (APy one person) 5 51 O O O O PERSONAL A ADV IWURY $ $1 000 000 R.ffll C GENERGLAGGREGALE s s2 ODD 000 A AGGREGATE L LIMIT APPLIES PER' P PRODUCTS. COMRMP AGG $ $Z U001 OOO PODCV P PRO- �( LOC A A AUTOMOPRE L LMMITY 72 SBM NU1948 0 04/03/09 0 04/03/10 J JE. WEU SINGLE LIMIT s sl, 000, 000 BODILY INJURN $ $ ALL OWNED AUTOS X H HIRED AUTOS B BODILY INJURY 5 PROPERTY DAMAGE 5 5 ' I GA"GEUABNITY — A NI O AUTO ONLY - EA ACCIDENT 4 4 OTHER THAN EA ACC 5 5 19 EXC ESSLLABB/rr AUTO ONLY, _ AG_G 1 5 _ OCCUR CLAIMSMADL A AGGREGATE s s Ia a D[DUCneLE a S RETENTION $ _ _ S GSTATV I OTH L . EACH ACCIOENT 5 .L DISEASE- EAEMPL_OYEE 5 5 TNfR E T B - —_ - -_ D£SCRIPT/ON OF OPERAT /ON9{OCgTIONSN£N(QfS/fXt(US/ONS AOOEO BY EM1DORSEMFNi /SPECIAL PROV /SCONE Those usual to the Insured's Operations. The City its officers, officials, employees & volunteers is listed as additonal insured per business liabiltiy form SS0008. Coverage is primary & non - contributory per the Business Liability . Coverage Form SS0008, attached to this policy. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE I EXPIRATION DATE THEREOF. THE ISSUING INSURER WILL ENDEAVOR TO MAIL City of Newport Beach 30 DAYS WRITTEN NOTICE 110 DAYS FOR NON - PAYMENT) TO THE CERTIFICATE P.O. BOX 1768 HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO 3300 NEWPORT BLVD OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. NEWPORT BEACH, CA 92663 -- - - - - -- 11V R V 6JJ L 11. 11 d ACURD CURPUHATION T 668 QUICK REFERENCE BUSINESS LIABILITY COVERAGE FORM READ YOUR POLICY CAREFULLY BUSINESS LIABILITY COVERAGE FORM Beginning on Page A. COVERAGES 1 Business Liability 1 Medical Expenses 2 Coverage Extension - Supplementary Payments 2 B. EXCLUSIONS 3 C. WHO IS AN INSURED 10 D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 14 E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 15 1, Bankruptcy 15 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit 15 3. Financial Responsibility Laws 16 4. Legal Action Against Us 16 5. Separation Of Insureds 16 6. Representations 16 7. Other Insurance 16 8. Transfer Of Rights Of Recovery Against Others To Us 17 F. OPTIONAL ADDITIONAL INSURED COVERAGES 18 Addi'ional Intiur; -;ds 18 G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 20 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and whet is and is not covered. Throughout this policy the words "you" and 'jour" refer to the Named Insured shown in the Declarations. The words "we ", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance. The word "insured" means any person or organization qualifying as such under Section C. - Who Is An Insured. Other words and phrases that appear in quotation marks have special meaning. Refer to Section G. - Liability And Medical Expenses Definitions. A. COVERAGES (a) The "bodily Injury" or "property 1. BUSINESS LIABILITY COVERAGE (BODILY damage" is caused by an INJURY, PROPERTY DAMAGE, PERSONAL occurrence" that takes place in the AND ADVERTISING INJURY) "coverage territory"; Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury", "property damage" or "personal and advertising injury" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" or offense and settle any claim or "suit" that may result. But: (1) The amount we will pay for damages is limited as described in Section D. - Liability And Medical Expenses Limits Of Insurance; and (2) Our right and duty to defend ends :,hen we have used up the applicable limit of insurance in the payment of judgments, settlements or medical expenses to which this insurance applies. No other obligation or liability to pay sums or perform ads or services is covered unless explicitly provided for under Coverage Extension - Supplementary Payments. b. This insurance applies: (1) To "bodily injury" damage" only if: and "property (b) The "bodily injury" or "property damage" occurs during the policy pedod;and (c) Prior to the policy period, no insured listed under Paragraph 1. of Section C. — Who Is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period. (2) To "personal and advertising injury" caused by an offense arising out of your business. but only if the offense was committed in the "coverage territory' during the policy period. c. "Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. of Section C. — Who is An Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim: (1) Reports all, or any part, of the "bodily Injury" or "property damage" to us or any otter insurer; Form SS 00 08 04 05 Page 1 of 24 © 2005, The Hartford BUSINESS LIABILITY COVERAGE FORM (2) Receives a written or verbal demand or clalm for damages because of the 'bodily injury" or "property damage°; or (3) Becomes aware by any other means that "bodily injury" or "property damage" has occurred or has begun to occur. d. Damages because of "bodily Injury" include damages claimed by any person or organization for pre, loss of services or death resulting at any time from the "bodily injury". e. Incidental Medical Malpractice (1) "Bodily injury" arising out of the rendering of or failure to render professional health pre services as a physician, dentist, nurse, emergency medical technician or paramedic shall be deemed to be caused by an "occurrence ", but only if: (a) The physician, dentist, nurse, emergency medical technician or paramedic is employed by you to provide such services; and (b) You are not engaged in the business or occupation of providing such services. (2) For the purpose of determining the limits of insurance for incidental medical malpractice, any act or omission together with all related acts or omissions in the furnishing of these services to any one person will be considered one "occurrence ". 2. MEDICAL EXPENSES Insuring Agreement a. We will pay medical expenses as described below for "bodily injury" caused by an accident: (1) On premises you own or rent; (2) On ways next to premises you ovrn or rent; or (3) Because of your operations, provided that: (1) The accident takes place in the "coverage territory" and during the policy period; (2) The expenses are incurred and reported to us within three years of the date of the accident; and (3) The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require. It. We will make these payments regardless of fault. These payments will not exceed the applicable limit of insurance. We will pay reasonable expenses for: (1) First aid administered at the time of an accident; (2) Necessary medical, surgical, x -ray and dental services, including prosthetic devices; and (3) Necessary ambulance, hospital, professional nursing and funeral services. 3. COVERAGE EXTENSION - SUPPLEMENTARY PAYMENTS a. We will pay, with respect to any claim or "suit" we investigate or settle, or any "suit" against an insured we defend: (1) All expenses we incur. (2) Up to $1,000 for the cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which Business Liability Coverage for "bodily injury" applies. We do not have to furnish these bonds. (3) The cost of appeal bonds or bonds to release attachments, but only for bond amounts within the applicable limit of insurance. We do not have to furnish these bonds. (4) All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit ", including actual loss of earnings up to $500 a day because of time off from work f5) All costs taxed against the insured in the "suit" (6) Prejudgment interest awarded against the insured on that part of the judgment we pay If we make an o`far to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. (7) All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance. Any amounts paid under (1) through (7) above will not reduce the limits of insurance. Page 2 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b. If we defend an insured against a "suit" So long as the above conditions are met, and an indemnitee of the insured is also attorneys' fees incurred by us in the named as a party to the "suit", we will defense of that indemnitee, necessary defend that indemnitee if all of the litigation expenses incurred by us and following conditions are met: necessary litigation expenses incurred (1) The "suit" against the indemnitee by the indemnitee at our request will be seeks damages for which the insured paid as Supplementary Payments. has assumed the liability of the Notwithstanding the provisions of indemnitee in a contract or agreement Paragraph ll.b.(b) of Section B. — that is an "insured contract"; Exclusions, such payments will not be (2) This insurance applies to such liability deemed to be damages for "bodily assumed by the insured; injury" and "property damage" and will not reduce the Limits of Insurance. (3) The obligation to defend, or the cost of the defense of, that indemnitee, has Our obligation to defend an insured's also been assumed by the insured in indemnitee and to pay for attorneys' fees the same "insured contract"; and necessary litigation expenses as Supplementary Payments ends when: (4) The allegations in the "suit" and the information we know about the (1) We have used up the applicable limit "occurrence" are such that no conflict of insurance in the payment of appears to exist between the interests judgments or settlements; or of the insured and the interest of the (2) The conditions set forth above, or the indemnitee; terms of the agreement described in (5) The indemnitee and the insured ask Paragraph (6) above, are no longer met us to conduct and control the defense B. EXCLUSIONS of that indemnitee against such "suit" 1. Applicable To Business Liability Coverage and agree that we can assign the same counsel to defend the insured This insurance does not apply to: and the indemnitee: and a. Expected Or Intended Injury (6) The indemnitee: (1) "Bodily injury" or "property damage" (a) Agrees in writing lo: expected or intended from the standpoint of the insured. This (i) Cooperate with us in the exclusion does not apply to "bodily investigation, settlement or injury" or "property damage" resulting defense of the "suit "; from the use of reasonable force to (ii) Immediately send us copies of protect persons or property; or any demands, notices, (2) "Personal and advertising injury" arising summonses or legal papers out of an offense committed by, at the received in connection with direction of or with the consent or the "suit "; acquiescence of the insured with the (iii) Notify any other insurer whose expectation of inflicting "personal and coverage is available to the advertising jr-jury" indemnitee, and b. Contractual Liability (iv) Cooperate with us with 1 "Bodily injury" or "property damage"; or () y ry p per' g respect to coordinating other applicable insurance available (2) "Personal and advertising injury" to the indemnitee: and for which the insured is obligated to pay (b) Provides us with written damages by reason of the assumption of authorization to: liability in a contract or agreement. (i) Obtain records and other This exclusion does not apply to liability information related to the for damages because of: "suit ", and (a) "Bodily injury", "properly damage" or (ii) Conduct and control the "personal and advertlsing injury'that defense of the indemnitee in the insured would have in the such "suit ". absence of the contract or agreement; or Form SS 00 08 04 05 Page 3 of 24 or BUSINESS LIABILITY COVERAGE FORM (b) "Bodily injury" or "property damage" (b) Performing duties related to the assumed in a contract or agreement conduct of the insured's business, or that is an "insured contract ", (2) The spouse, child, parent, brother or provided the "bodily injury' or sister of that "employee" as a "property damage" occurs consequence of (1) above. subsequent to the execution of the This exclusion applies: contract or agreement, Solely for the purpose of liability assumed in (1) Whether the insured may be liable as an "insured contract", reasonable an employer or in any other capacity; attorneys fees and necessary and litigation expenses incurred by or for (2) To any obligation to share damages a party other than an insured are with or repay someone else who must deemed to be damages because of pay damages because of the injury. "bodily injury" or 'property damage" This exclusion does not apply to liability provided: assumed by the insured under an "insured (1) Liability to such party for, or for contract". the cost of, that party's defense f. Pollution has also been assumed in the same "insured contract", and (1) "Bodily injury', "property damage" or "personal and advertising Injury' (it) Such attorneys' fees and arising out of the actual, alleged or litigation expenses are for threatened discharge, dispersal, defense of that party against a seepage, migration, release or escape civil or alternative dispute of "pollutants": resolution proceeding in which damages to which this (a) At or from any premises, site or insurance applies are alleged. location which is or was at any time owned or occupied by, or c. Liquor Liability rented or loaned to any insured. "Bodily injury" or "property damage" for However, this subparagraph does which any insured may be held liable by not apply to: reason of: (i) "Bodily injury" if sustained within (1) Causing or contributing to the a building and caused by intoxication of any person; smoke, fumes, vapor or soot (2) The furnishing of alcoholic beverages to produced by or originating from a person under the legal drinking age or equipment that is used to heat, under the influence of alcohol; or cool or dehumidify the building, (3) Any statute, ordinance or regulation or equipment that is used to heat water for personal use, by relating to the sale, gift, distribution or the building's occupants or their use of alcoholic beverages. guests: This exclusion applies only if you are in the (ii) "Bodily injury" or "property business of manufacturing, distributing, darnage" for which you may be seeing, serjing or furnishing alcnholic held liable, It you are a beverages. contractor and the owner or d. Workers' Compensation And Similar lessee of such premises, site or Laws location has been added to your Any obligation of the insured under a policy as an additional insured workers' compensation, disability benefits with respect to your ongoing or unemployment compensation law or operations performed for that any similar law. additional insured at that ' e. Employer's Liability premises, site or location and "Bodily injury" to: such premises, site or location (1) An "employee" of the insured arising is not and never was owned or occupied by, or rented or out of and in the course of: loaned to, any insured, other (a) Employment by the insured; or than that additional insured; or Page 4 of 24 Form 88 OD 08 D4 05 (iii) "Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire "; (b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste; (c) Which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for: (1) Any insured; or (if) Any person or organization for whom you may be legally responsible; (d) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured's behalf are performing operations if the "pollutants" are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor. However, this subparagraph does not apply to: (f) "Bodily injury" or "property damage" arising out of the escape of fuels, lubricants or other operating fluids which are needed to perform the normal electrical, hydraulic or mechanical functions necessary for the operation of "mobile equipment" or its parts, if such fuels, lubricants or other operating fluids escape from a vehicle part designed to hold, store or receive them. This exception does not apply if the "bodily injury" or "property damage' arises out of the intentional discharge, dispersal or release of the fuels, lubricants or other operating fluids, or if such fuels, lubricants or other operating fluids are brought on or to the premises, site or location with the intent that they be discharged, dispersed or BUSINESS LIABILITY COVERAGE FORM released as part of the operations being performed by such insured, contractor or subcontractor, (if) "Bodily injury" or "property damage" sustained within a building and caused by the release of gases, fumes or vapors from materials brought into that building in connection with operations being performed by you or on your behalf by a contractor or subcontractor; or (iii) "Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire "; or (e) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insureds behalf are performing operations if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, "pollutants ". (2) Any loss, cost or expense arising out of any: (a) Request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond lo, or assess the effects of, "pollutants "; or (b) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing. containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of, "pollutants ". However, this paragraph does not apply to liability for damages because of "property damage" that the insured would have in the absence of such request, demand, order or statutory or regulatory requirement, or such claim or "suit" by or on behalf of a governmental authority. Form SS 00 08 04 05 Page 5 of 24 BUSINESS LIABILITY COVERAGE FORM 9• It. Aircraft, Auto Or Watercraft "Bodily injury' or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading". This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" involved the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft that is owned or operated by or rented or loaned to any insured. This exclusion does not apply to: (1) A watercraft while ashore on premises you own or rent; (2) A watercraft you do not own that is: (a) Less than 51 feet long; and (b) Not being used to carry persons for a charge; (3) Parking an "auto" on, or on the ways next lo, premises you own or rent, provided the "auto" is not owned by or rented or loaned to you or the insured; (4) Liability assumed under any "insured contract" for the ownership, maintenance or use of aircraft or watercraft; (5) "Bodily injury" or "property damage" arising out of the operation of any of the equipment listed in Paragraph f.(2) or f.(3) of the definition of "mobile equipment "; or (6) An aircraft that is not owned by any insured and is hired, chartered or loaned with a paid crew. However, [his exception does not apply if the insured has any other insurance for such "bodily injury" or "property damage ", whether the other insurance is primary, excess, contingent or on any other basis. Mobile Equipment "Bodily injury" or "property damage" arising out of: (1) The transportation of "mobile equipment' by an "auto" owned or operated by or rented or loaned to any insured; or (2) The use of "mobile equipmenC in, or while in practice or preparation for, a prearranged racing, speed or demolition contest or in any stunting activity. i. War "Bodily injury", "property damage" or "personal and advertising injury', however caused, arising, directly or indirectly, out of (1) War, including undeclared or civil war, (2) Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or (3) Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority In hindering or defending against any of these. j. Professional Services "Bodily injury", "property damage" or "personal and advertising Injury" arising out of the rendering of or failure to render any professional service. This includes but is not limited to: (1) Legal, accounting or advertising services; (2) Preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; (3) Supervisory, inspection, architectural or engineering activities; (4) Mcdical. surgical, dental, x -ray or nursing services treatment, advice or inslruclion; (5) Any health or therapeutic service be=en:, novice or ins;ructioi., (6) Any service. treatment, advice or instruction for the purpose of appearance or skin enhancement, hair removal or replacement or personal grooming; (7) Optical or hearing aid services including the prescribing, preparation, fitting, demonstration or distribution of ophthalmic lenses and similar products or hearing aid devices; Page 6 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (8) Optometry or optometric services Paragraphs (1), (3) and (4) of this including but not limited to examination exclusion do not apply to "property of the eyes and the prescribing, damage" (other than damage by fire) to preparation, fitting,demonstration or premises, including the contents of such distribution of ophthalmic lenses and premises, rented to you for a period of 7 or similar products; fewer consecutive days. A separate Limit (9) Any: of Insurance applies to Damage To Premises Rented To You as described in (a) Body piercing (not including ear Section D. - Limits Of Insurance. piercing); Paragraph (2) of this exclusion does not (b) Tattooing, including but not limited apply if the premises are "your work" and to the insertion of pigments into or were never occupied, rented or held for under the skin; and rental by you. (c) Similar services; Paragraphs (3) and (4) of this exclusion do (10) Services in the practice of pharmacy; not apply to the use of elevators. and Paragraphs (3), (4), (5) and (6) of this (11) Computer consulting, design or exclusion do not apply to liability assumed programming services, including web under a sidetrack agreement. site design. Paragraphs (3) and (4) of this exclusion do Paragraphs (4) and (5) of this exclusion do not apply to "property damage" to not apply to the Incidental Medical borrowed equipment while not being used Malpractice coverage afforded under to perform operations at a job site. Paragraph 1.e. in Section A. - Coverages. Paragraph (6) of this exclusion does not k. Damage To Property apply to "property damage" included in the "Property damage" to: '.products-completed operations hazard ". (1) Property you own, rent or occupy, 1. Damage To Your Product including any costs or expenses "Property damage" to "your product' incurred by you, or any other person, arising out of it or any part of it. organization or entity, for repair, m. Damage To Your Work replacement, enhancement, restoration or maintenance of such "Property damage" to "your work" arising property for any reason, including out of it or any part of it and included in the prevention of injury to a person or "products- completed operations hazard ". damage to another's property; This exclusion does not apply if the (2) Premises you sell, give away or damaged work or the work out of which abandon, if the "property damage" arises the damage arises was performed on your out of any part of those premises; behalf by a subcontractor. (3) Property loaned to you; n. Damage To Impaired Property Or Property Not Physically Injured (4) Personal property in the care. custody or control of the insured: "Property damage" to "impaired property" or properly 1kal has riot oeen physically (5) That particular part of real property on injured, arising out of. which you or any ronliactors or subcontractors working directly or (1) A defect, deficiency, inadequacy or indirectly on your behalf are performing dangerous condition in "your product" operations, if the "property damage" or "your work "; or arises out of those operations: or (2) A delay or failure by you or anyone (6) That particular part of any property acting on your behalf to perform a that must be restored, repaired or contract or agreement in accordance replaced because "your work" was with its terms. incorrectly performed on it. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to "your product" or "your work" after it has been put to its intended use. Form SS 00 08 04 05 Page 7 of 24 BUSINESS LIABILITY COVERAGE FORM o. Recall Of Products, Work Or Impaired Property Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: (1) "Your product "; (2) "Your work "; or (3) "Impaired property"; if such product, work or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it. p. Personal And Advertising Injury "Personal and advertising injury": (1) Arising out of oral, written or electronic publication of material, if done by or at the direction of the insured with knowledge of its falsity; (2) Arising out of oral, written or electronic publication of material whose first publication look place before the beginning of the policy period; (3) Arising out of a criminal act committed by or at the direction of the insured; (4) Arising out of any breach of contract, except an implied contract to use anther's "advertising idea" in your "advertisement% (5) Arising out of the failure of goods, products or services to conform with any statement of quality or performance made in your "advertisement ", (5) Arising out of the wrong description of the price of goods. products or services; (7) Arising out of any violation of any intellectual property rights such as copyright, patent, trademark, trade name, trade secret, service mark or other designation of origin or authenticity. However, this exclusion does not apply to infringement, in your "advertisement", of (a) Copyright; (b) Slogan, unless the slogan is also a trademark, trade name, service mark or other designation of origin or authenticity; or (c) Ti0e of any literary or artistic work; (8) Arising out of an offense committed by an insured whose business is: (a) Advedising, broadcasting, publishing or telecasting; (b) Designing or determining content of web sites for others; or (c) An Internet search, access, content or service provider. However, this exclusion does not apply to Paragraphs a., b. and c. under the definition of "personal and advertising injury" in Section G. — Liability And Medical Expenses Definitions. For the purposes of this exclusion, placing an "advertisement" for or linking to others on your web site, by itself, is not considered the business of advertising, broadcasting, publishing or telecasting; (9) Arising out of an electronic chat room or bulletin board the insured hosts, owns, or over which the insured exercises control; (10) Arising out of the unauthorized use of anthers name or product in your e-mail address. domain name or metatags, or any other similar tactics to mislead anthers potential customers; (11) Arising out of the violation of a person's right of privacy created by any state or federal act. However, this exclusion does not apply to liability for damages that the insured would have in the absence of such state or federal act, (12) Arising out of: (a) An "advertisement" for others on your web s;te (b) Placing a link to a web site of others on your web site; (c) Content from a web site of others displayed within a frame or border on your web site. Content includes information, code, sounds, text, graphics or images; or (d) Computer code, software or programming used to enable: (i) Your web site; or (ii) The presentation or functionality of an "advertisement" or other content on your web site; Page 8 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (13) Arising out of a violation of any anti- (a) May be awarded or incurred by trust law; reason of any claim or suit (14) Arising out of the fluctuation in price or alleging actual or threatened injury value of any stocks, bonds or other or damage of any nature or kind to securities; or persons or property which would (15) Arising out of discrimination or not have occurred in whole or in "asbestos "; pat but for the hazard humiliation committed by or at the direction of any "executive officer, (b) Arise out of any request, demand, director, stockholder, partner or order or statutory or regulatory member of the insured. requirement that any insured or q. Electronic Data others test for, monitor, clean up, remove, encapsulate, contain, Damages arising out of the loss of, loss of treat, detoxify or neutralize or in use of, damage to, corruption of, inability any way respond to or assess the to access, or inability to manipulate effects of an "asbestos hazard "; or "electronic data ". (c) Arise out of any claim or sort for r. Employment - Related Practices damages because of testing for, "Bodily injury" or "personal and advertising monitoring, cleaning up, removing, injury" to: encapsulating, containing, treating, (1) A person arising out of any: detoxifying or neutralizing or in any way responding to or assessing the (a) Refusal to employ that person; effects of an "asbestos hazard". (b) Termination of that person's I. Violation Of Statutes That Govern E- employment; or Mails, Fax, Phone Calls Or Other (c) Employment - related practices, Methods Of Sending Material Or policies, acts or omissions, such as Information coercion, demotion, evaluation, "Bodily injury", "property damage ", or reassignment, discipline, °personal and advertising injury" arising defamation, harassment, humiliation directly or indirectly out of any action or or discrimination directed at that omission that violates or is alleged to person; or violate: (2) The spouse, child, parent, brother or (1) The Telephone Consumer Protection sister of that person as a Act (TCPA), including any amendment consequence of "bodily injury" or of or addition to such law; "personal and advertising injury" to the (2) The CAN -SPAM Act of 2003, including person at whom any of the any amendment of or addition to such employment - related practices law; or described in Paragraphs (a), (b), or (c) above is directed (3) Any statute. ordnance or regulation, This exclusion applies: other than the TCPA or CAN -SPAM Act of 2003, that prohibits or limits the (1) Whether the insured may be liable as sending. fransmiltinq. communicatinc or an employer or in any other capacity; distribution of material or information. and Damage To Premises Rented To You — (2) To any obligation to share damages Exception For Damage By Fire, Lightning with or repay someone else who must or Explosion pay damages because of the injury. Exclusions c. through h. and k. through o. do s. Asbestos not apply to damage by fire, lightning or (1) "Bodily injury", "property damage" or explosion to premises rented to you or "personal and advertising injury" temporarily occupied by you with permission of arising out of the "asbestos hazard ". the owner. A separate Limit of Insurance (2) Any damages, judgments, settlements, applies to this coverage as described in loss, costs or expenses that: Section D. - Liability And Medical Expenses Limits Of Insurance. Form SS 00 08 04 05 Page 9 of 24 BUSINESS LIABILITY COVERAGE FORM 2. Applicable To Medical Expenses Coverage We will not pay expenses for "bodily injury": a. Any Insured To any insured, except "volunteer workers ". b. Hired Person To a person hired to do work for or on behalf of any insured or a tenant of any insured. c. Injury On Normally Occupied Premises To a person injured on that part of premises you own or rent that the person normally occupies. d. Workers' Compensation And Similar Laws To a person, whether or not an "employee" of any insured, N benefits for the "bodily injury" are payable or must be provided under a workers' compensation or disability benefits law or a similar law. e. Athletics Activities To a person injured while practicing, instructing or participating in any physical exercises or games, sports or athletic contests. C Products- Completed Operations Hazard Included with the "products- completed operations hazard ". g. Business Liability Exclusions Excluded under Business Liability Coverage. C. WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individuat, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the Conduct of your business. c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect to their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but Only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. 14 - --- 1 - a. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees. 2. Each of the following is also an insured: a. Employees And Volunteer Workers Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees ", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" or "volunteer workers" are Insureds for: (1) "Bodily injury" or "personal and advertising injury": (a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), or to a co= employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers" while performing duties related to the conduct of your business; (b) To the spouse, child, parent, brother or sister of that co- "employee" or that "volunteer worker" as a consequence of Paragraph (1)(a) above; (c) For which there is any obligation to share damages with or repay someone else who must pay oamages because of the injury described in Paragraphs (1)(a) or (b) above; or (d) Arising out of his or her providing or failing to provide professional health rare services. If you are not in the business of providing professional health care services, Paragraph (d) does not apply to any nurse, emergency medical technician or paramedic employed by you to provide such services. (2) "Property damage" to property: (a) Owned, occupied or used by, Page 10 of 24 Form SS 00 08 04 05 (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees ", "volunteer workers ", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Unfit your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof. of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insued uncle, c,rrh policy hul for ifs termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock. will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and BUSINESS LIABILITY COVERAGE FORM b. Coverage under this provision does not apply to: (1) "Bodily injury" or "property damage" that occurred; or (2) 'Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment" registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only ff no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with rasped to: a. "Bodily injury" to a cc- "employee" of the person driving the equipment; or b. 'Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no oerson or organization is an insured with respect to: a. 'Bodily injury" to a co- "employee" of the person operating the watercraft; or b. 'Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a. through f. below are additional insureds when you have agreed, in a written Form SS 00 08 04 05 Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of a (e) Any failure to make such permit issued by a state or political inspections, adjustments, tests or subdivision, that such person or organization servicing as the vendor has be added as an additional insured on your agreed to make or normally policy, provided the injury or damage occurs undertakes to make in the usual subsequent to the execution of the contract or course of business, in connection agreement, or the issuance of the permit. with the distribution or sale of the A person or organization is an additional products; insured under this provision only for that (f) Demonstration, installation, period of time required by the contract, servicing or repair operations, agreement or permit. except such operations performed at the vendor's premises in However, no such person or organization is an connection with the sale of the additional insured under this provision if such product; person or organization is included as an additional insured by an endorsement issued (9) Products which, after distribution by us and made a part of this Coverage Part, or sale by you, have been labeled including all persons or organizations added or relabeled or used as a as additional insureds under the specific container, part or ingredient of any additional insured coverage grants in Section other thing or substance by or for F. — Optional Additional Insured Coverages. the vendor; or a. Vendors (h) "Bodily injury" or "property damage" arising out of the sole Any person(s) or organization(s) (referred to negligence of the vendor for its Wow as vendor), but only with respect to own acts or omissions or those of "bodily injury" or "property damage" arising its employees or anyone also out of "your products" which are distributed acting on its behalf. However, this or sold in the regular course of the vendor's exclusion does not apply to: business and only if this Coverage Part provides coverage for "bodily injury" or (i) The exceptions contained in "property damage" included within the Subparagraphs (d) or (f); or "products- completed operations hazard ". (ii) Such inspections, adjustments, (1) The insurance afforded to the vendor tests or servicing as the vendor is subject to the following additional has agreed to make or normally exclusions: undertakes to make in the usual course of business, in This insurance does not apply to: connection with the distribution (a) "Bodily injury" or "property or sale of the products. damage" for which the vendor is (2) This insurance does not apply to any obligated to pay damages by whored person or organization from reason of the assumption of whom you have acquired such products, liability in a contract or agreement. any ingredient, part or container, This exclusion does not apply to entering into. accompanying or e !iahility fcr dmmqces !hat the c•ontziou;y �ucl: picducis. vendor would have in the absence of the contract or agreement; b. Lessors Of Equipment (b) Any express warranty (1) Any person or organization from unauthorized by you; whom you lease equipment; but only with respect to their liability for "bodily (c) Any physical or chemical change injury ", "property damage" or in the product made intentionally "personal and advertising injury" by the vendor; caused, in whole or in part, by your (d) Repackaging, except when maintenance, operation or use of unpacked solely for the purpose of equipment leased to you by such inspection, demonstration, testing, person or organization. or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; Page 12 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (2) With respect to the insurance afforded e. Permits Issued By State Or Political to these additional insureds, this Subdivisions insurance does not apply to any (1) Any state or political subdivision, but "occurrence" which takes place after only with respect to operations you cease to lease that equipment. performed by you or on your behalf for c. Lessors Of Land Or Premises which the state or political subdivision (1) Any person or organization from has Issued a permit. whom you lease land or premises, but (2) With respect to the Insurance afforded only with respect to liability arising out to these additional insureds, this of the ownership, maintenance or use insurance does not apply to: of that part of the land or premises (a) "Bodily Injury", "property damage" leased to you. or "personal and advertising (2) With respect to the insurance afforded injury" arising out of operations to these additional insureds, this performed for the state or insurance does not apply to: municipality; or (a) Any "occurrence" which takes (b) "Bodily injury" or "property damage" place after you cease to lease that included within the "products - land or be a tenant in that completed operations hazard". premises; or f. Any Other Party (b) Structural alterations, new (1) Any other person or organization who construction or demolition is not an insured under Paragraphs a. operations performed by or on through a. above, but only with behalf of such person or respect to liability for "bodily injury", organization. "property damage° or "personal and d. Architects, Engineers Or Surveyors advertising injury" caused, in whole or (1) Any architect, engineer, or surveyor, but in part, by your acts or omissions or only with respect to liability for 'bodily the acts or omissions of those acting injury", "property damage" or "personal on your behalf: and advertising injury" caused, in whole (a) In the performance of your or in part, by your acts or omissions or ongoing operations; the acts or omissions of those acting on (b) In connection with your premises your behalf: owned by or rented to you; or (a) In connection with your premises; (c) In connection with "your work" and or included within the "products - (b) In the performance of your completed operations hazard ", but ongoing operations performed by only if you or on your behalf. (i) The written contract or written (2) With respect to the insurance afforded agreement requires you to to these additional insureds, the provide such coverage to following additional exclusion applies such additional insured; and This insurance does not apply to (if) This Coverage Part provides "bodily injury ", "property damage" or coverage for "bodily injury" or "personal and advertising inlury" "property damage" included arising out of the rendering of or the within the "products - failure to render any professional completed operations hazard ". services by or for you, including: (2) With respect to the insurance afforded (a) The preparing, approving, or to these additional insureds, this failure to prepare or approve, insurance does not apply to: maps, shop drawings, opinions, "Bodily injury", "property damage" or reports, surveys, field orders, "personal and advertising injury" change orders, designs or arising out of the rendering of, or the drawings and specifications; or failure to render, any professional (b) Supervisory, inspection, architectural, engineering or surveying architectural or engineering services, including: activities. Form SS 00 08 D4 05 Page 13 of 24 BUSINESS LIABILITY COVERAGE FORM (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. The limits of Insurance that apply to additional insureds are described in Section D. — Limits Oflnsurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits ". 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily inimy" and "property damage" included in the "products- completed operations hazard" is the Products - Completed Operations Aggregate Limit shown in the Declarations. b. Damages because of all other "buddy injury ", " property damage" or "personal and advertising injury', including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right -of -way of a railroad. Page 14 of 24 This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of 'bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. S. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from lire, lightning or explosion or any combination of these. 6. How Limits Apply To Additionai insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section. Form SS 00 08 04 05 -1-1.1 .. -0 - . W:. BUSINESS LIABILITY COVERAGE FORM If more than one limit of insurance under this (1) Immediately send us copies of any policy and any endorsements attached thereto demands, notices, summonses or applies to any claim or "suit ", the most we will pay legal papers received in connection under this policy and the endorsements is the with the claim or "suit": single highest limit of liability of all coverages (2) Authorize us to obtain records and applicable to such claim or "suit ". However, this other information; paragraph does not apply to the Medical Expenses (3) Cooperate with in the investigation, limit set forth in Paragraph 3. above. settlement of the claim or defense The Limits of Insurance of this Coverage Pad apply against the "suit"; and separately to each consecutive annual period and to (4) Assist us, upon our request, in the any remaining period of less than 12 months, starting enforcement of any fight against any with the beginning of the policy period shown in the person or organization that may be Declarations, unless the policy period is extended liable to the insured because of injury after issuance for an additional period of less than 12 or damage to which this insurance months. In that case, the additional period will be may also apply. deemed part of the last preceding period for purposes d. Obligations At The Insureds Own Cost of determining the Limits of Insurance. E. LIABILITY AND MEDICAL EXPENSES No insured will, except at that insured's own cost make a payment, assume GENERAL CONDITIONS any obligation, or incur any expense, other obligation, 1. Bankruptcy than for first aid, without our consent Bankruptcy or insolvency of the Insured or of e. Additional Insured's Other Insurance the insured's estate will not relieve us of our if we cover a claim or "suit" under this obligations under this Coverage Part, Coverage Part that may also be covered 2. Duties In The Event Of Occurrence, by other insurance available to an Offense, Claim Or Suit additional insured, such additional insured a. Notice Of Occurrence Or Offense must submit such claim or "suit" to the other insurer for defense and indemnity. You or any additional insured must see to However, this provision does not apply to it that we are notified as soon as "occurrence" the extent that you have agreed to a practicable of an or an written contract, written agreement or offense which may result in a claim. To permit that this insurance is primary and the extent possible, notice should include: non- contributory with the additional 1 How, when and where the "occurrence" () insured's own insurance. or offense took place; I. Knowledge Of An Occurrence, Offense, (2) The names and addresses of any Claim Or Suit injured persons and witnesses, and Paragraphs a. and b. apply to you or to (3) The nature and location of any injury any additional insured only when such or damage arising out of the "occurrence ", offense, claim or "suit" is "occurrence' or offense. known to: b. Notice Of Claim (1) You or any additional insured that is If a claim is made or "suit" is brought an individual; against any insured, you or any additional (2) Any partner, if you or an additional insured must: insured is a partnership; (1) Immediately record the specifics of the (3) Any manager, if you or an additional claim or "suit" and the date received; insured is a limited liability company; and (4) Any "executive officer" or insurance (2) Notify us as soon as practicable. manager, if you or an additional You or any additional insured must see to insured is a corporation; it that we receive a written notice of the (5) Any trustee, if you or an additional claim or "suit" as soon as practicable. insured is a trust; or c. Assistance And Cooperation Of The (6) Any elected or appointed official, if you Insured or an additional insured is a political You and any other involved Insured must: subdivision or public entity. Form SS 00 08 04 05 Page 15 of 24 BUSINESS LIABILITY COVERAGE FORM This Paragraph L applies separately to (3) We have issued this policy in reliance you and any additional insured. upon your representations. 3. Financial Responsibility Laws b. Unintentional Failure To Disclose a. When this policy is certified as proof of Hazards financial responsibility for the future under If unintentionally you should fail to disclose the provisions of any motor vehicle all hazards relating to the conduct of your Financial responsibility law, the insurance business at the inception date of this provided by the policy for "bodily injury' Coverage Part, we shall not deny any liability and "property damage" liability will coverage under this Coverage Part comply with the provisions of the law to because of such failure. the extent of the coverage and limits of 7. Other Insurance insurance required by that law. b. With respect to "mobile equipment" to If other valid and collectible insurance is which this insurance applies, we will available for a loss we cover under this Coverage Part, our obligations are limited as provide any liability, uninsured motorists, follows: underinsured motorists, no-fault or other coverage required by any motor vehicle a. Primary Insurance law. We will provide the required limits for This insurance is primary except when b. those coverages. below applies. If other insurance is also 4. Legal Action Against Us primary, we will share with all that other No person or organization has a right under insurance by the method described in c. this Coverage Form: below. a. To join us as a party or otherwise bring us b. Excess Insurance into a "suit" asking for damages from an This insurance is excess over any of the insured; or other insurance, whether primary, excess, b. To sue us on this Coverage Form unless contingent or on any other basis: all of its terms have been fully complied (1) Your Work with. That is Fire, Extended Coverage, A person or organization may sue us to recover Builder's Risk, Installation Risk or on an agreed settlement or on a final judgment similar coverage for "your work" against an insured; but we will not be liable for (2) Premises Rented To You damages that are not payable under the terms of That is fire, lightning or explosion this insurance or that are in excess of the insurance for premises rented to you applicable limit of insurance. An agreed or temporarily occupied by you with settlement means a settlement and release of permission of the owner; liability signed by us, the insured and the claimant or the claimant's legal representative. (3) Tenant Liability 5. Separation Of Insureds That is insurance purchased by you to Except with respect to the Limits of Insurance, cover your liability as a tenant for and any rights or dupes specifically assigned "property damage" to premises rented ❑i this policy to [tie first Named Insured, Ihrs fo you or ten ;;�rari; nceupierl by you insurance applies. with permission of the owner; a, As if each Named Insured were the only (4) Aircraft, Auto Or Watercraft Named insured; and If the loss arises out of the maintenance b. Separately to each insured against whom or use of aircraft, "autos" or watercraft to a claim is made or "suit" is brought. the extent not subject to Exclusion g. of Section A. — Coverages. 6. Representations (5) Damage To Borrowed a. When You Accept Y t This Policy Equipment Or Use Of Elevators Equipment By accepting this policy, you agree: If the loss arises out of "property (1) The statements in the Declarations damage" to borrowed equipment or are accurate and complete; the use of elevators to the extent not (2) Those statements are based upon subject to Exclusion k. of Section A. — representations you made to us; and Coverages. Page 16 of 24 Form SS 00 08 04 05 (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the following provisions apply to other Insurance available to any person or organization who is an additional insured under this Coverage Part (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non - Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non - contributory with the additional insured's own insurance, this insurance is primary and we will not seek con +.rihohpn F ^m that olh-r insurance Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit ". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. BUSINESS LIABILITY COVERAGE FORM When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self - Insured amounts under all that hither insurance. We will share the remaining loss, 0 arty, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts unlit it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments. we have made under this Coverage Part, those rights are transferred to us The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rnghls to us and lielp us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. Form SS DO 08 04 05 Page 17 of 24 BUSINESS LIABILITY COVERAGE FORM F. OPTIONAL ADDITIONAL INSURED 3. Additional Insured - Grantor Of Franchise COVERAGES WHO IS AN INSURED under Section C. is If listed or shown as applicable in the Declarations, amended to include as an additional insured one or more of the following Optional Additional the person(s) or organization(s) shown in the Insured Coverages also apply. When any of these Declarations as an Additional Insured - Optional Additional Insured Coverages apply, Grantor Of Franchise, but only with respect to Paragraph 6. (Additional Insureds When Required their liability as grantor of franchise to you. by Written Contract, Written Agreement or Permit) 4. Additional Insured - Lessor Of Leased of Section C., Who Is An Insured, does not apply Equipment to the person or organization shown in the a. WHO IS AN INSURED under Section C. is Declarations. These coverages are subject to the amended to include as an additional terms and conditions applicable to Business insured the person(s) or organization(s) Liability Coverage in this policy, except as shown in the Declarations as an Additional provided below: Insured — Lessor of Leased Equipment, 1. Additional Insured - Designated Person Or but only with respect to liability for "bodily Organization injury", "property damage" or "personal WHO IS AN INSURED under Section C. is and advertising Injury" caused, in whole or amended to include as an additional insured in part, by your maintenance, operation or the person(s) or organization(s) shown in the use of equipment leased to you by such Declarations, but only with respect to liability person(s) or organization(s). for "bodily injury", "property damage" or b. With respect to the insurance afforded to "personal and advertising injury" caused, in these additional insureds, this insurance whole or in part, by your acts or omissions or does not apply to any "occurrence" which the acts or omissions of those acting on your takes place after you cease to lease that behalf: equipment. a. In the performance of your ongoing 5. Additional Insured - Owners Or Other operations; or Interests From Whom Land Has Been b. In connection with your premises owned Leased by or rented to you. a. WHO IS AN INSURED under Section C. is 2. Additional Insured - Managers Or Lessors amended to include as an additional Of Premises insured the person(s) or organization(s) shown in the Declarations as an Additional a. WHO IS AN INSURED under Section C. is Insured — Owners Or Other Interests From amended to include as an additional insured Whom Land Has Been Leased, but only the person(s) or organization(s) shown in the with respect to liability arising out of the Declarations as an Additional Insured - ownership, maintenance or use of that part Designated Person Or Organization; but only of the land leased to you and shown in the with respect to liability arising out of the Declarations ownership, maintenance or use of that part of b. With respect to the insurance afforded to the premises leased to you and shown in the these additional insureds. the following Declarations additinnal exclusicns apply. b. VVllh respect to the insurance afforded to This insurance does not apply to these additional insureds, the following additional exclusions apply: (1) Any "occurrence" that takes place This insurance does not apply lo: after you cease to lease that land; or (1) Any "occurrence" which takes place (2) Structural alterations, new after you cease to be a tenant in that constnrdion or demolition operations performed by or on behalf of such premises: or person or organization. (2) Structural alterations, new 6. Additional Insured - State Or Political construction or demolition operations Subdivision — Permits performed by or on behalf of such person or organization. a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional Page 18 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Insured — State Or Political Subdivision - (e) Any failure to make such Permits, but only with respect to inspections, adjustments, tests or operations performed by you or on your servicing as the vendor has agreed behalf for which the state or political to make or normally undertakes to subdivision has issued a permit. make in the usual course of b. With respect to the insurance afforded to business, in connection with the these additional insureds, the following distribution or sale of the products; additional exclusions apply: (f) Demonstration, installation, This insurance does not apply to: servicing or repair operations, except such operations performed (1) "Bodily injury', "property damage" or at the vendor's premises in "personal and advertising injury" connection with the sale of the arising out of operations performed for product; the state or municipality; or (9) Products which, aver distribution (2) "Bodily injury" or "property damage" or sale by you, have been labeled included in the *product- completed or relabeled or used as a operations" hazard. container, part or ingredierd of any 7. Additional Insured —Vendors other thing or substance by or for a. WHO IS AN INSURED under Section C. is the vendor; or amended to include as an additional (h) 'Bodily injury" or "property insured the person(s) or organization(s) damage" arising out of the sole (referred to below as vendor) shown in the negligence of the vendor for its Declarations as an Additional Insured - own ads or omissions or those of Vendor, but only with respect to "bodily its employees or anyone else injury" or "property damage" arising out of acting on its behalf. However, this "your products" which are distributed or exclusion does not apply to: sold in the regular course of the vendor's (i) The exceptions contained in business and only if this Coverage Part Subparagraphs (d) or (fl; or provides coverage for "bodily injury" or "property damage" included within the (if) Such inspections, "products- completed operations hazard ". adjustments, tests or servicing as the vendor has agreed to b. The insurance afforded to the vendor is make or normally undertakes subject to the following additional exclusions: to make in the usual course of (1) This insurance does not apply to: business, in connection with (a) "Bodily injury" or "property the distribution or sale of the damage" for which the vendor is products. obligated to pay damages by (2) This insurance does not apply to any reason of the assumption of insured person or organization from liability in a contract of agreement. whom you have acquired such This exclusion does not apply to products, or any ingredient, part or liability for damages that the container, entering into, vendor would have in the absence accompanying or containing such of the contract or agreement, products (b) Any express warranty 8. Additional Insured — Controlling Interest unauthorized by you; WHO IS AN INSURED under Section C. is (c) Any physical or chemical change amended to include as an additional insured in the product made intentionally the person(s) or arganization(s) shown in the by the vendor; Declarations as an Additional Insured — (d) Repackaging, unless unpacked Controlling Interest, but only with respect to solely for the purpose of inspection, their liability arising out of: demonstration, testing, or the a. Their financial control of you; or substitution of parts under b. Premises they own, maintain or control instructions from the manufacturer, while you lease or occupy these premises. and then repackaged in the original container, Form SS 00 08 04 05 Page 19 of 24 BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural alterations, new construction and demolition operations performed by or for that person or organization. 9. Additional Insured — Owners, Lessees Or Contractors — Scheduled Person Or Organization a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organizations) shown in the Declarations as an Additional Insured — Owner, Lessees Or Contractors, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (1) In the performance of your ongoing operations for the additional insured(s); or (2) In connection with "your work" performed for that additional insured and included within the "products - completed operations hazard ", but only if this Coverage Part provides coverage for 'bodily injury" or "property damage" included within the "products- completed operations hazard ". b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to "bodily injury', "property damage" or "personal an advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including. (1) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports. surveys, lieid orders, change orderb, designs or drawings and specifications: or (2) Supervisory, inspection, architectural or engineering activities. 10. Additional Insured — Co -Owner Of Insured Premises WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or Organization(s) shown in the Declarations as an Additional Insured — Co- Owner Of Insured Premises, but only with respect to their liability as co -owner of the premises shown in the Declarations. f24 The limits of insurance that apply to additional Insureds are described in Section D. — Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other insurance Condition in Section E. — Liability And Medical Expenses General Conditions. G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 1. "Advertisement" means the widespread public dissemination of information or images that has the purpose of inducing the sale of goods, products or services through: a. (1) Radio; (2) Television; (3) Billboard; (4) Magazine; (5) Newspaper; b. The Internet, but only that part of a web site that is about goods, products or services for the purposes of inducing the safe of goods, products or services; or c. Any other publication that is given widespread public distribution. However, "advertisement" does not include: a. The design, printed material, information or images contained in, on or upon the packaging or labeling of any goods or products; or b. An interactive conversation between or among persons through a computer network. 2. "Advertising idea" means any idea for an "advertisement ". 3. "Asbestos hazard" means an exposure or threat of exposure to the actual or alleged properties of asbestos and includes the mere presence of asbestos in any form. 4. "Auto" means a land motor vehicle, trailer or semifrailei designed for travel on public roads, including any attached machinery or equipment. But "auto" does not include "mobile equipment ". 5. "Bodily injury" means physical: a. Injury; b. Sickness; or c. Disease sustained by a person and, if arising out of the above, mental anguish or death at any time. 6. "Coverage territory" means: Form SS 00 08 04 05 a. The United States of America (including its territories and possessions), Puerto Rico and Canada; b. International waters or airspace, but only if the Injury or damage occurs in the course of travel or transportation between any places Included in a. above; c. All other parts of the world if the injury or damage arises out of: (1) Goods or products made or sold by you in the temtory described in a. above; (2) The activities of a person whose home is in the territory described in a. above, but is away for a short time on your business; or (3) "Personal and advertising injury" offenses that lake place through the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto Rico or Canada, in a "suit" on the merits according to the substantive law in such territory, or in a settlement we agree to. 7. "Electronic data" means information, facts or programs: a. Slored as or on; b. Created or used on; or c. Transmitted to or from computer software, including systems and applications software, hard or floppy disks. CD -ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. 8. "Employee' includes a 'leased worker ". "Employee" does not include a "temporary ucrker'. 9. "Executive officer" means a person holding any of the officer positions created by your charter, constitution, by -laws or any other similar governing document. 10. "Hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. 11. "Impaired property" means tangible property, other than "your product" or "your work ", that cannot be used or is less useful because: a. It incorporates "your product" or "your work" that is known or thought to be defective, deficient, inadequate or dangerous; or V BUSINESS LIABILITY COVERAGE FORM b. You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by: a. The repair, replacement, adjustment or removal of "your product" or "your work "; or b. Your fulfilling the terms of the contract or agreement. 12. "Insured contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is subject to the Damage To Premises Rented To You limit described in Section D. — Liability and Medical Expenses Limits of Insurance. b. A sidetrack agreement; c. Any easement or license agreement, Including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; d. Any obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; or f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the loft liability of another party to pay for "bodily injury" or "property damage" to a third person or organization, provided the "bodily injury" or "property damage" rs caused. in whole or in part, by you or by those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. includes that part of any contract or agreement that indemnities a railroad for "bodily injury' or "property damage" arising out of construction or demolition operations within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, road -beds, tunnel, underpass or crossing. However, Paragraph f, does not include that part of any contract or agreement: Form SS 00 08 04 05 Page 21 of 24 BUSINESS LIABILITY COVERAGE FOR09 (1) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or (2) Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in (1) above and supervisory, inspection, architectural or engineering activities. 13. "Leased worker" means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. "Leased worker" does not include a "temporary worker ". 14. "Loading or unloading" means the handling of property: a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or "auto "; b. While it is in or on an aircraft, watercraft or "auto "; or C. While it is being moved from an aircraft, watercraft or "auto" to the place where it is finally delivered: but "loading or unloading" does not include the movement of property by means of a mechanical device, uther than a hand truck, that is not attached to the aircraft, watercraft or "aulo ". 15. "Mobile equipment" means any of the following types of land vehicles, including any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; b. Vehicles maintained for use solely on or next to premises you own or rent; c. Vehicles that travel on crawler treads; d. Vehicles, whether self- propelled or not, on which are permanently mounted: (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment such as graders, scrapers or rollers; e. Vehicles not described in a., b., c., or d. above that are not self - propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types: (1) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or (2) Cherry pickers and similar devices used to raise or lower workers; f. Vehicles not described in a., b., c., or d. above maintained primarily for purposes other than the transportation of persons or cargo. However, self - propelled vehicles with the following types of permanently attached equipment are not "mobile equipment" but will be considered "autos ": (1) Equipment, of at least 1,000 pounds gross vehicle weight, designed primarily for: (a) Snow removal; (b) Road maintenance, but not construction or resurfacing; or (c) Street cleaning; (2) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and (3) Air compressors, pumps and generators, including spraying, welding. building cleaning, geuph,s.cal c;:ploration, hghiing and well servicing equipment. 16. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 17. "Personal and advertising injury" means injury, including consequential "bodily injury ", arising out of one or more of the fallowing offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; Page 22 of 24 Form SS 00 08 04 05 c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that the person occupies, committed by or on behalf of its owner, landlord or lessor; d. Oral, written or electronic publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; e. Oral, written or electronic publication of material that violates a person's right of privacy; I. Copying, in your "advertisement ", a person's or organization's "advertising idea" or style of 'advertisement "; g. Infringement of copyright, slogan, or title of any literary or artistic work, in your "advertisement "; or It. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. 18. "Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. 19. "Products- completed operations hazard "; a. Includes all "bodily injury" and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except. (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned However. "your work" will be deemed to be completed at the earliest of the following times: (a) When all of the work called for iri your contract has been completed. (b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site. (c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. BUSINESS LIABILITY COVERAGE FORM Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. The "bodily injury" or "property damage" must occur away from premises you own or rent, unless your business includes the selling, handling or distribution of "your product' for consumption on promises you own or rent. b. Does not include "bodily injury" or "property damage" arising out of: (1) The transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you, and that condition was created by the "loading or unloading" of that vehicle by any insured; or (2) The existence of tools, uninstalled equipment or abandoned or unused materials. 20. "Property damage" means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of "occurrence" that caused it. As used in this definition, "electronic data" is not tangible property. 21. "Suit" means a civil proceeding in which damages because of "bodily injury ", "property damage" or "personal and advertising injury' to which This insurance applies are alleged. "Suit" includes: a. An arbitration proceeding it which such damages are claimed and to which the insured must submit or does submit with our consent; or b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. 22. 'Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 23. "Volunteer worker" means a person who: a. Is not your "employee "; Form SS 00 08 04 05 Page 23 of 24 BUSINESS LIABILITY COVERAGE FORM b. Donates his or her work; c. Acts at the direction of and within the scope of duties determined by you; and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. 24. "Your product": a. Means: (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a) You; (b) Others trading under your name; or (c) A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your product ": and (2) The providing of or failure to provide warnings or instructions. c. Does not include vending machines or other property rented to or located for the use of others but not sold. 25. "Your work ": a. Means: (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your work "; and (2) The providing of or failure to provide warnings or instructions. Page 24 of 24 Form SS 00 08 04 05 0 0 CITY OF NEWPORT BEACH CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE I hereby certify that in the performance of the work for which this Agreement is entered into, I shall not employ any person in any manner so as to become subject to the Workers' Compensation Laws of the State of California. Executed on this 30th day of June, 2009, at Newport Beach, California. Principal • CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 09/04/09 Dept./Contact Received From: Shauna Date Completed: 09/08/09 Sent lo: Shauna Oyler By: Judy Villalobos Company /Person required to have certificate: Sirius Environmental GENERAL LIABILITY A. INSURANCE COMPANY: Hartford Casualty Ins. Cc B. AM BEST RATING (A: VII or greater): A, XV C. ADMITTED Company (Must be California Admitted) Is Company admitted in California? N Yes ❑ No D. LIMITS (Must be $1M or greater): What is limit provided? $1MM /$2MM /$2MM E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (Completed Operations status does not apply to Waste Haulers) N Yes ❑ No F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it Updated 09/24109 included? R Yes ❑ No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? R Yes ❑ No H. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes R No I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. II. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: Hartford Casualty Insurance Co. B. AM BEST RATING (A: VII or greater) A. XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? R Yes ❑ No D. LIMITS (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? Hired & NOA covg. only. $1 MM E. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers) :Is it included? ❑ Yes R No F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): Is it included? N/A ❑ Yes ❑ No G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. 0 0 III. WORKERS' COMPENSATION NO WC COVERAGE INDICATED ON THE CERT, A. INSURANCE COMPANY: NIA B. AM BEST RATING (A: VII or greater): _ N/A C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): HAVE ALL ABOVE REQUIREMENTS BEEN MET? Is it included? ❑ Yes ❑ No ❑ Yes ® No GL: At endt. is not specific to the City, as blanket At applies as required by written contract. GL: Primary & Non - contributory endt, was not provided, yet included in policy form SS0008 0405, as required by written contract. Auto: At endt and /or Auto policy form not provided. IF NO, WHICH ITEMS NEED TO BE COMPLETED? j/Gased on info. provided on 09/24/09: L: At endt. is not specific to the City, as blanket At applies as required by written contract. GL: Primary & Non - contributory endt. was not provided, yet included in policy form SS0008 0405, as required by written contract. Auto: At endt and /or Auto policy form not provided. The policy form sent with the certificate dated 09/24/09, applies to Business Liability (GL). CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 23 September 22, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Mark Reader, Contract Project Manager 949 -981 -5260, mreadero @city.newport- beach.ca.us SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH SIRIUS ENVIRONMENTAL FOR PREPARATION OF A RE- CIRCULATED DRAFT EIR FOR MARINA PARK PROJECT APPLICANT NAME: City of Newport Beach RECOMMENDATION: Authorize the Mayor to execute the attached agreement with Sirius Environmental to prepare the Re- circulated Draft EIR for a cost not to exceed $84,300.00. BACKGROUND: The Marina Park site is located on the bay side of the Newport Peninsula between 15`h and 18`h Street. The re -use of the property proposes a new marina which includes a visiting vessel marina, a visitor side -tie dock, and floating docks to support youth and adult sailing programs. A sailing center building is proposed to support the needs of various sailing programs within the community and a Community Center is proposed to provide community programming needs. The amenities of the park include a new Girl Scout house, tennis courts, half -court basketball courts, tot lot and children's water play area. On November 13, 2007, the City Council approved the Marina Park Concept Plan and Final Master Plan report and authorized the City Manager to bring forward a contract for the schematic design phase of the Marina Park Project and proceed with preparation of CEQA documents. On March 25, 2008, the City Council approved a Professional Services Agreement with Michael Brandman and Associates to prepare an Environmental Impact Report (EIR) for the Marina Park Project. The EIR was circulated for public review between February 27 and April 13, 2009. Marina Park - Sirius Environmental Agreement September 22, 2009 Page 2 Discussion The project proposes a variety of uses such as a marina, community buildings and park. The Draft EIR document addressed the potentially significant environmental impacts that may be associated with the planning, construction and operation of the project as well as identified appropriate and feasible mitigation measures and alternatives that may be adopted to significantly reduce or avoid these impacts. During the public review period, the City received comment letters from regulatory agencies including City of Irvine, Newport Beach Environmental Quality Affairs Citizens Advisory Committee (EQAC), homeowner associations, and residents, requesting further clarification and additional technical analysis including policy determinations. Staff concludes that such clarification is necessary and thereby will require re- circulation the draft EIR. The re- circulated EIR will include additional technical studies to address comments by the California Coastal Commission, California Department of Toxic Substance Control, California Regional Water Quality Control Board, and the US Department of Commerce National Oceanic & Atmospheric Administration relating to the construction of the marina. Further site remediation analysis is needed for the Southern California Edison parcel (which the City is currently in negotiations to purchase). In addition to the technical studies provided, detailed information regarding possible phases for the project will be included in the re- circulated EIR. The following is a brief summary of the phases: Phase I — will include removal of the existing Marina Park mobile home structures. The footprint which was occupied by the coaches will be transformed into an open space park, utilizing the existing soil onsite with concrete sidewalks and a temporary restroom facility. The existing sidewalk and trees adjacent to the beach will remain. The existing alley will be restriped to provide parking and the existing gates at the mobile home park will be removed to provide continuous alley access from 15m to 18th Street. Please refer to the Phase I Exhibit. Phase II — will be a continuation of Phase I whereas the City has the option to provide more of a "park- like" setting with provision of turf, picnic tables, and benches. Please refer to the Phase II Exhibit. Phase III — will consist of the full build out of the Marina Park Project as indicated on the Phase III Exhibit. The re- circulated EIR document will evaluate the project phases so that each phase could be approved and implemented independently. Proposals were requested from two firms to provide services for re- circulation of the Marina Park EIR. Staff recommends the Draft EIR to be re- circulated should be completed by Sirius Environmental as this will provide a more aggressive schedule to the City. Sirius Environmental's proposal recognized the high level of public interest in this project by including a reasonable budget for preparation, coordination, and communication in the EIR process. Marina Park - Sirius Environmental Agreement September 22, 2009 Page 3 The attached Proposal from Sirius provides a scope of work, and fee schedules for the preparation of a re- circulated Draft EIR for the Marina Park Project. This proposal has been reviewed by the City Attorney's Office and Planning staff. Compensation for the EIR is not to exceed $84,300.00. It is anticipated that reproduction and mailing costs will be $5,000.00 which will be paid to the vendors directly by the City. The Draft EIR should be available for public review in 7 weeks (the week of November 9, 2009) and Final EIR approval accomplished 19 weeks from the date of Council approval. February 9, 2010, is the estimated date for certification of the EIR. Since the project is the City's capital improvement project, the City will be responsible for the cost of preparing the EIR. Fundinq Availability: Sufficient funds are available in the following FY 09/10 CIP accounts for the project: Account Description General Fund Prepared by: ntract Project Manager Account Number 7411- C4002002 Attachment: PSA with Sirius Environmental Sirius Environmental Scope of Services Marina Park Site Plan Exhibit Phase I Marina Park Site Plan Exhibit Phase II Marina Park Site Plan Exhibit Phase III Total Amount $89,300.00 $89,300.00 Submitted by: S phe adum Public orks Director 0 600Z'81 *ftPmMwwWMMM"m%mm I 0z' 09 ot 0 Ueld I 9se4d lied eu1jew ----------- Uj0wQuML(0AW Supspa� asnoN Ino3s 111D F n slow Ou I13 N94R3 -- q9- I T T-T -T -IrIFT-1 jajuaO p1winos LW04FAL ,Unwwo 141unwwao F0qIeg 1 10 uvpm�. �; I i I I i i lot I I I I _j i i i i T 7) ww w a w 'r SIU10.12UPPed ON P91"M vteows 01 Kos ;U8s1%3 Ilem 40018 2ulign ammou Salgo aAOW98 - ssa00V 4WO8 Je SCIKS $UJISIX3 ;j"ojpje,*a;jjPuqst.qi I Existing Lifeguard loft( . —New Lifeguard Tow Beach I I r-- Existing Steps at Beach Access - Remove Gates ,4 ry "m Co un! Existing otflwa� ter Em, I [GliriScout ca H, (PR House 't EdsthgbrhewS,%WAOm4fn Balboa Boulevard ------------ Marina Park Phase 2 Plan 0 30 60 120 "' U — mmm6mmmmijA 18, 2009 O Renraine Existing ilocit W611 Nemlorf Area . Ad dftn at Decomposed Wolf a rift t. V Alit Existing Edge of'Paying dk a 4b r F 1 ®, i I 1 1 1 1 1 11 1 1 11 i is al 7 1 71 11 If, I i i I ITi I'l jj!js 1 [7 TT-17 m VNIIC�a J. that I .—I'- 12-1-o—.- .--- - ,4 ry "m Co un! Existing otflwa� ter Em, I [GliriScout ca H, (PR House 't EdsthgbrhewS,%WAOm4fn Balboa Boulevard ------------ Marina Park Phase 2 Plan 0 30 60 120 "' U — mmm6mmmmijA 18, 2009 O ..... ..... . . Marina Park Schematic Plan September 9, 2009 O0 50 100 150 250 "Al T� 1_ t Existing l „erma PaMRdadJZ Hcme Park ;.vow Ilk- 2 Cam ^. wnityr<r;fei � ' 4 7an2'S CetnYs 4M 5 HallBaskelbal /Court k ^+ - _ E Las Arenas Pak B Res Uenla/O: pJer qy _° f0 Amexan Legon POSl.R791. f7 No1e1 12 Amelieao Legion Park - f3 pump sraf'on l4 1gh SbeelResf room f5 Padage ✓esse/LaancAArea low T� 1_ t Existing ;.vow Ilk- .:low., PROFESSIONAL SERVICES AGREEMENT WITH WENDY LOCKWOOD DBA SIRIUS ENVIRONMENTAL FOR MARINA PARK PROJECT THIS AGREEMENT is made and entered into as of this day of September, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation( "City "), and WENDY LOCKWOOD, DOING BUSINESS AS (dba) SIRIUS ENVIRONMENTAL a sole proprietorship whose address is 1478 North Altadena Dr., Pasadena, CA, 91107( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to develop City -owned property commonly known as Marina Park at 1700 W. Balboa Boulevard. C. City desires to engage Consultant for preparation of the re- circulated draft EIR and the final EIR as outlined in the Sirius Environmental Scope of Services referenced as Exhibit "A" for.the Marina Park Project ('Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of this Project, shall be Wendy Lockwood. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31 day of July, 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 the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and 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 ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand- delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Eighty Four Thousand, Three Dollars and no /100 ($84,300) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) 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 writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: r. A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B, 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Wendy Lockwood to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Planning Department. Rosalinh Ung, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. Z 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 blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 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. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, 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 indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively,. "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or 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, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement, Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 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 Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability. insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 7 vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non- payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 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. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 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 A City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other parry. 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. All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings, and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. ii 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or n restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, 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: Dave Webb Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3328 Fax: 949 - 644 -3328 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attn: Wendy Lookwood Sirius Environmental 1478 North Altadena Dr Pasadena, CA, 91107 Phone: 626- 808 -0031 Fax: 866- 698 -5178 11 28. TERMINATION in the event that either party fails or refuses to .perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. 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. 33. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 34. 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. 35. SEVERASILITY 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. 36. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 1q IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, A Municipal Corporation By: ynett e h m , Assistant City A hey ATTEST: Leilani Brown, City Clerk Edward Selich Mayor for the City of Newport Beach CONSULTANT: 10 Sirius Environmental Title: Sole Proprietor Print Name: Wendy Lockwood Attachments: Exhibit A — Scope of Services Exhibit B — Billing Rate fx_wal� Ar Sirius Environmental September 3, 2009 Mr. David Lepo, Planning Director Ms. Rosalinh M. (Jug, Associate Planner City of Newport Beach 3304 Newport Boulevard Newport Beach, CA 92663 Re: Proposed Scope of Work, Schedule and Costs to prepare a Recirculated Draft EIR (RDEIR) and Final EIR (FEIR) for the Marina Park project Dear David and Res: As we discussed, enclosed please find our proposed scope of work, schedule and costs to prepare a Recirculated Draft EIR and Final EIR for the Marina Park project. We look forward to working with you on this project. We understand the time - sensitive nature of the EIR and are conunitted to meeting your schedule. David and Ros, if you have any questions or would like me to expand on any aspect of the attached please call or send me an e -mail. Yours sincerely, Wendy Lockwood Principal 1478 N. Altadetna Drive, Pasadena, California 91107 626 -808 -0031 www.siriusenvironmental.com Sirius Environmental Proposal Marina Park Recirculated Draft EIR (RDEIR) Sirius Environmental September 3, 2009 Scope of Work Task 1: Revise Project Description. This task includes revising the project description to reflect the 3- phased project: Phase 1: Removal of mobile homes (coaches), and replacement with a (rough) sand park (with temporary restrooms adjacent to the parking area); also addition of a new lifeguard tower on the beach. The boardwalk and shrubbery along the beach will be maintained. Phase 2: Replacement of the sand park with grass, conversion of the existing alley section into temporary metered public parking (still under consideration). Phase 3: As analyzed in the original Draft EIR: new park configuration with new basketball and tennis courts, new restrooms, reconfigured green space and parking, new children's play area, new Balboa Center multi- purpose building and sailing program, replacement Girl Scout house and new visiting vessel marina and general purpose marina. Additional detail on project elements will be brought in to the Project Description (e.g., number of pilings; design of the groin, seawall, and docks; potential marina circulation enhancement measures) in response to questions raised in agency comment letters. In particular the purpose and need for the new marina including the bulkhead and groin wall will be documented. The Project Description will also be augmented to include a description of project construction (including estimated duration of activities). Elements will include the anticipated pile driving techniques; dredge and fill quantities; dredging techniques; dredged material quality, disposal techniques, and locations; sand compatibility; tree removal timing and controls; construction -phase air and water pollution controls). These revisions will ensure that the impact analyses are properly set up and consistent with one another and that the full scope of project activities is disclosed, as it should be, in the Project Description. The Project Description will be augmented to include estimates /assumptions of operational phase activities used to analyze traffic and other issue areas (vehicular traffic, boat traffic, park visitors, etc.) that are currently scattered throughout the 1478 N. Altadena Drive, Pasadena, California 91107 626- 808 -0031 www.siriusenvironmental.com Sirius Environmental appendices and impact assessment tables. Elements requested in comment letters such as relevant details of a marina management plan (anti - fouling paints, marine mammal management); clarification of the function of the on -site cafe, and other details will be included. Task 2: Revise Environmental Setting, Impact Analyses and Mitigation Measures. The existing setting overview will be augmented to include information on existing water circulation, sediment contamination, and existing activities such as traffic, boating, visitors, etc. Most of this information is available in the technical appendices, and simply needs to be brought into the text. The CEQA baseline (conditions as of May 2008, date of the NOP) can then be clearly established. We also suggest a map showing the location of cumulative projects be included in the Traffic report (to be prepared by Austin Foust Associates) and in the OR, This task includes incorporating all the new analyses to be received from technical consultants (wetland delineation, erosion /hazards, sand compatibility, traffic), as well as preparation of phased analyses of all issues. Additional noise and air quality modeling will be undertaken to reflect the phased project. In general, the impact sections will be revised to make them more consistent with one another in format, style, and level of analysis; they should be edited for clarity, and amended to reflect the revised project description. The sections will include descriptions of baseline conditions for each issue area, as well as summaries of the project elements that could have impacts in those issue areas. The text of each impact section will be edited as necessary to separate setting and methodology from impact analysis. The impact analyses will be revised to compare the project to the CEQA baseline more clearly. Certain of the issue areas, discussed below, will need additional modifications. We would anticipate working closely with City staff to obtain additional information and clarification, as necessary. The mitigation measures will be revised, in consultation with City staff, to ensure that they are specific, feasible, and relevant. Task 2A. Aesthetics The analysis of the aesthetic issues will be augmented to emphasize the aesthetic benefits of the project (removal of the mobile home park and opening up of views) and to treat in more depth the features that would exceed permissible heights. The analysis will exaluate each phase. Task 2B. Air Qualit Construction emissions for all three phases will be calculated and presented separately. Based on operational characteristics evaluated in the revised traffic study (being prepared under separate contract), operational emissions for the different phases will be discussed and modeled as appropriate. Greenhouse gas emissions will be quantified using the Urbemis model. The RDEIR will include a discussion of greenhouse gas (GHG) emissions compared to City of Newport Beach thresholds and any applicable criteria identified by State, or regional agencies (such as the Southern California Association of Governments — 2 Sirius Environmental SCAG, or the South Coast Air Quality Management District — SCAQMD). The GHG analysis will include consideration of both quantitative and qualitative factors (such as the potential for the park to provide recreational amenities to local residents thereby reducing vehicle miles travelled and GHG emissions, also any energy /water saving features of the project). Task 2C. Bioloav The setting section will include more detailed information on the wetlands status of the site, per the delineation undertaken by MBA. The impact assessment will be revised to provide more focus and detail concerning project impacts on fish habitat, especially EFH, invasive species, and eelgrass. As an example, the conversion of intertidal habitat to sub -tidal habitat is an impact on EFH. Although the project's footprint would be small, it is of concern primarily from a cumulative standpoint, since, as Newport Bay has developed to support recreational boating, beach and intertidal shoreline has been converted to bulkhead. The section will be augmented with a more thorough discussion of construction noise that takes into account recent NMFS guidance on underwater noise and marine mammals (National Marine Fisheries Service. 2003. Taking of Marine Mammals Incidental to Specified Activities; Construction of the East Span of the San Francisco - Oakland Bay Bridge. Notice of issuance of an incidental harassment authorization. 68 Federal Register 64595 - 64609). This section will also include a summary of the biological assessment (to be prepared under separate contract) of the four sand disposal sites. (The full Biological Assessment of the four beaches will be included as an Appendix.) Task 2D. Cultural Resources Revisions to address the three - phased project are anticipated in this section. Task 2E. Land Use The land use section will be revised to clarify the relationship between the Coastal Act and the City of Newport Beach's Coastal Land Use Plan (Local Coastal Program), as well as to present a summary of the current status of the Coastal Land Use Plan and the implications for not having an adopted LCP (Coastal Development Permit from the Coastal Commission). The history of the City's interaction with the Coastal Commission on the LCP will be described. Of particular concern is the implications of the 2006 changes to the dredge, dike, and fill language of the Coastal Act. This revision is vital for the marina component of the project, and will be undertaken in close cooperation with City staff. Complete /augment comprehensive policy analysis of project compared to all applicable General plan policies. Task 2F. Hazards A Phase II Environmental Site Assessment (ESA) is underway for the Southern California Edison property (under separate contract) to characterize the potential contamination and identify any appropriate mitigation measures. The Phase II ESA will be summarized and incorporated in to the Recirculated Draft EIR. Sirius Environmental Task 2G. Hvdrolociv and Water Qualit The water quality and hydrology section will be revised to address project phasing and incorporate information on existing and with - project coastal processes, i.e., shoreline erosion. Everest International (under separate contract), will prepare: 1) an opinion letter on coastal processes and potential impacts of the project, 2) a revision of the previous analysis conducted using the hydrodynamic and water quality model to reflect the change in groin wall, 3) a qualitative discussion of long -term water quality management in the marina as a result of increased population in the area and use of motors in the marina. Fuscoe Engineering (under separate contract) will provide further discussion on the evaluation of surface runoff on the land portion of the site (an evaluation of surface water runoff is included in the Preliminary Water Quality management Plan — WQMP). The section will also be revised to include more up -to -date information on the regulatory setting, per the RWQCB comments, including the status of regional TMDLs, the City's MS4 permit, the construction storm water permit, and the Basin Plan. We assume that Fuscoe and Everest will provide sufficient information to generally evaluate any potential for significant project- specific impacts on TMDLs. The impact analysis will incorporate more detail on the effects of construction pollution control measures, and will explain how the proposed marina would not introduce additional pollutants into the bay system (the vessels would come without the marina, but would be accommodated at offshore moorings). 2H. Noise Construction and operational impacts of the three - phased project will be evaluated based on construction equipment anticipated for all three phases and operational characteristics of all three phases analyzed in the traffic report. 21. Public Services Revisions to this section are anticipated to reflect the change to a three - phased project. 2J. Transportation The revised traffic analysis (being prepared under separate cover by Austin Foust Associates) to address the three - phased project will be summarized in the Recirculated Draft E1Ra It is assumed that the revised traffic analysis will include an updated list (and map) of cumulative projects. 2K. Utilities Revisions to this section are anticipated to reflect the change to a three - phased project. Task 3: Alternatives. This task includes revising the alternatives analysis to add substance and reflect the revised technical analyses. In addition the alternatives will be revised to reflect similar phasing to the project as appropriate. Discussion of an alternative site will be added. Sirius Environmental The alternatives analysis will be substantially augmented in order to ensure that CEQA's intent that "the EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project" (CEQA Guidelines 15126.6(d)). The range of alternatives in the draft Marina Park EIR is reasonable, but there is insufficient information on the impacts of those alternatives to support a meaningful comparison of the alternatives with the proposed project. More description will be provided concerning the key differences between the alternatives and the proposed project, and detailed descriptions, quantitative where feasible and necessary, of the impacts associated with those differences will be provided. Task 4: CommentlResponse Matrix. This task includes preparation of a matrix summarizing comments received on the Draft EIR and where responses to those comments are located in the Recirculated Draft EIR, Task 5: General Editing. This task includes comprehensive review and editing and reformatting as needed of the entire document to improve readability and consistency (there will be substantial overlap between this task and Task 3, since they will be conducted at the same time, however, this task is needed even without changes to the project and addition of analyses). Chapters 1 (Introduction) and 2 (Executive Summary) will require minor editing to incorporate the revised project description and impact analyses, but will not require new studies or analyses. Task 6: Meetings and Hearings. This task includes three meetings with staff and attendance at three public meetings. Task 7: Response to Staff Comments, Preparation of Notice of Completion (NOC) and Notice of Availability (NOA) and Print Instructions. This task includes response to staff comments (one set of unified comments) on the screencheck Draft EIR. Given staff's substantial background in the project, their input will be sought early and often to reduce review time. A "proof copy" of the document will be submitted to City staff for their review prior to delivering to the printer. This task includes preparation of a print ready Recirculated Draft EIR and the NOC and NOA as well as providing print instructions to the printer. It does not include reproduction or mailing costs, or costs of posting notices at the County Clerk or in the newspaper. Task 8: Response to Public/Agency Comments and Preparation of Mitigation Monitoring and Reporting Program (MMRP). This task includes response to all public /agency comments and preparation of a Final EIR (Addendum Format) for staff review. This task also includes response to staff comments on the Final EIR. This task also includes preparation of a Mitigation Monitoring and Reporting Plan. This task includes preparation of a print -ready document (FEIR) as well as print instructions. It does not include reproduction or mailing costs, or costs of posting notices at the County Clerk or in the newspaper. It assumes 50 hours of Sirius staff time will be sufficient for this task. Task 9: Findings Preparation of Notice of Determination (NOD). This task includes preparation of the Findings of Fact and Statement of Overriding Considerations as well as the NOD. (It does not include the CDFG or other fees or costs associated with posting the NOD.) Schedule Completion of all outside studies (Everest, Fuscoe, AFA): Submit Screencheck Draft REIR: Staff Review Completed: Revisions completed (proof copy available to staff October 30): Printing completed, publish Draft REIR: End of Comment Period: First Draft R to CIFEIR: Staff Review: Revisions completed: Publish Final EIR Certification Sirius Environmental September 30, 2009 October 19, 2009 October 27, 2009 November 2, 2009 November 9, 2009 December 23, 2009 January 6, 2010 January 13, 2010 January 20, 2009 January 27, 2010 (Jan 29 latest) February 9, 2010 Sirius Environmental Cost Estimate TASK UNITS SUBTOTAL TOTAL Screencheck Draft EIR Task 1: Revise Project Description 32 hrs $5,000.00 Task 2: Revise Impact Analyses 160 hrs $24,000.00 Task 3: Re -write Alternatives 32 hrs $5,000.00 Task 4: Comment Matrix 16 hrs $2,400.00 Task 5: General Review Editing 100 hrs $15,000.00 Subtotal Screencheck . 340 hrs $51,400 Task 6: Meetings and Hearings 60 $10,000 Task 7: Response to Staff Comments, DEIR 50 $7,500 Print Instructions, NOC and NOA Task 8: Response to Public /Agency Comments, 50 $7,500 FEIR Print Instructions and MMRP Task 9: Findings, NOD 40 $6,400 TOTAL LABOR 540 $82,800 Other Direct Costs Mileage @ $0.55 per mile, misc other $1,500 TOTAL BUDGET: $84,300 7 4k19, t 0 Sirius Environmental BILLING RATES .Category Hourly Billing Rate Principal ------- 00 Managing Consultant $150 0 . 0 Senior Consultant $120-00 Associate $90.00 Administrative I Graphics/Clerical $75.00 1478 N. Alfadena Drive, Pasadena, California 91107 626 808 0031 www.siriusenviroDmental.com "IMM L' � a �f a 4, S� Y re T Existing site m A" Al .c I'M L :a 011 Oar A" Al .c I'M PROFESSIONAL SERVICES AGREEMENT WITH SIRIUS ENVIRONMENTAL FOR ENVIRONMENTAL CONSULTING SERVICES FOR A GENERAL PLAN V AMENDMENT AT 328, 332, 336 OLD NEWPORT BLVD THIS AGREEMENT is made and entered into as of this 15th day of June, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and WENDY LOCKWOOD, DOING BUSINESS AS (DBA) SIRIUS ENVIRONMENTAL, a sole proprietorship, whose address is 1478 N. Altadena Drive, Pasadena, California, 91107 ( "Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to process an application to amend the Land Use Element of the General Plan to increase the floor area to land area ratio (FAR) permitted from 0.5 FAR to 1.0 FAR for the properties at 328, 332, and 336 Old Newport Blvd. C. City desires to engage Consultant to ensure that the environmental review process is carried out in accordance with the California Environmental Quality Act ( "Project"). D. 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 Wendy Lockwood. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 15th day of June 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 accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other parry so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Scope of Services & Costs attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Thirty-Nine Thousand Dollars ($39,000) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated WENDY LOCKWOOD to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION F? This Agreement will be administered by the Planning Department. JAIME MURILLO shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one 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 blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 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. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's 0 work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION 5 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 Consultant's indemnification of City, and Prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of R the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 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, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess 7 insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 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. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. 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. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 20. 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 N infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 21. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. 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. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 10 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. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Jaime Murillo Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3209 Fax: 949 - 644 -3229 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Wendy Lockwood Sirius Environmental 1478 N. Altadena Drive Pasadena, California 91107 Phone: 626- 808 -0031 Fax: 866 - 698 -5178 27. 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 11 steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. 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. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. 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. 31. 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. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 12 33. 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. 34. 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. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. 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. APP OVED AS TO FORM: �_ C. Aaroh Harp Assistant City Attorney for the City of Newport Beach CITY OF NEWPORT BEACH, A Municip I Corporation By: Omer Bludau City Manager for the City of Newport Beach F: \Users \PLN \Shared\Professional Services Agreements & Contracts101d Newport GPA\Sirius- Old Newport Professional Service Agreement.doc 13 Exhibit No. 1 Exhibit A — Scope of Services & Costs Sirius Environmental March G6, 2009 Jaime Muriilo Associate planner PO Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 - 3222 RE: Proposal to Provide Environmental Documentation for a General Plan Amendment to Increase Land use Intensities from 0.5 FAR to 1.0 FAR for three parcels: 328, 332, 340 Old Newport Boulevard Dear Jaime: Outlined below is our proposal to provide environmental documentation in connection with a General Plan Amendment (to increase the land use intensities from 0.5 FAR to 1.0 FAR) for three parcels located at 328, 332, 340 Old Newport Boulevard. Scope of Work The scope of work for the Initial Study, which appears likely will lead to a Mitigated Negative Declaration (MND), is broken down in to six tasks: Task 1: Project Initiation Attend kick off meeting with City staff and the traffic consultant and review background materials. Task 2: Draft Initial Study Prepare Draft IS /MND document. The recent General Plan Update (2006) provides a database of environmental conditions in the City including the project area. Where site specific data is not available the General Plan and EIR will be used to characterize the site and environs. t_ 4' 8N. AItadena Drive. Pasadena, CaliforniagI10? 61-68080031 w%��.,iriusenvironmm�laLcnm Jaime Murillo March 26, 2008 Page 2 Project Description. The Project Description, is the basis of all the environmental analyses. Most projects change (some substantially) from concept to working drawings. It is important that the environmental document identify a project envelope that captures the range of possible impacts. The project description will include a project location graphic and project plans sufficient to describe the project. Land Use. The FEIR for the 2006 General Plan Update indicates the following about the project area: The corridor is abutted by residential neighborhoods to the east and Hoag Hospital west of Newport Boulevard. Today, the area is primarily developed with commercial uses and professional offices. Other uses include personal services, restaurants, and specialty shopping such as home furnishing stores and beauty salons. Several auto - related businesses and service facilities are also located in the corridor. There has been an ongoing transition of uses to medical offices in this subarea, improving compatibility with the adjacent Hoag Hospital. Old Newport Boulevard was formerly the primary roadway leading into the City from the north, containing a diversity of highway - oriented retail and office uses. Shifting of vehicle trips to the parallel (new) Newport Boulevard reduced the corridor's traffic volumes and economic vitality, resulting in significant changes in its land use mix. Many of the existing auto - related businesses and service facilities located in the corridor are incompatible with the predominant pattern of retail service and office uses. The MND will briefly review land uses in the area and any potential for incompatibility. The MND will review project consistency with applicable general plan policies (in a table). Aesthetics. The MND will discuss the aesthetic character of the area, including scale and massing of buildings and will discuss project compatibility. Any potential for view blockage especially from public vantage points will be identified. Photographs of the area will be included in the IS /MND. Cultural Resources. Any potential excavation below existing disturbed soil will require standard mitigation measures to protect potential resources (monitoring by an archeologist). Geology. Using the 2006 General Plan Update EIR, the geology of the area will be generally characterized. Mitigation including preparation of a site- specific geotechnical report will be required. HydrologyNVater Quality. The site is already mostly covered with impervious surfaces, therefore significant impacts from runoff are not anticipated. Run -off and water quality issues are important in coastal cities. Compliance with NPDES and SUSMP regulations and Best Management Practices (BMPs) will address water quality concerns. Biological Resources. The project area is substantially urban and limited biological resources are anticipated to be present in the area. Nesting bird mitigation may be necessary for trees. Jaime Murillo March 26, 2009 Page 3 Hazards. Using the General Plan EIR potential hazards in the area will be generally described (Hoag Memorial Hospital is a "Large Quantity generator' of hazardous materials but impacts to the site are not anticipated. If a site - specific Phase I report is not available, any potential for hazards on -site an be addressed by requiring review (a Phase 1) testing and appropriate remediation for any anticipated contaminants. Traffic. The City intends to contract separately for a traffic study. This document will be summarized in the IS /MND. Should the Project Description be the are -wide analysis, we will work with Planning and Public Works staff to develop a qualitative analysis that addresses potential trip generation and project impacts from the maximum development that could occur under the GPA. Air Quality. Criteria pollutants and greenhouse gases are the focus of the air quality analysis. (New checklist questions have recently been suggested for the CEQA checklist.) Standard models (based on building size, anticipated excavation /grading and trip generation) quantify the pollutants that are likely to be generated during construction and operation. A hot spot analysis is not anticipated to be necessary. Noise. As with air quality, there are two types of impacts that are of concern — construction and operational. The MND will identify construction noise levels at nearby sensitive receptors as well as any potential increased noise levels along local roadways after project completion. Mitigation will be identified as necessary, including temporary noise barriers during construction. Task 3: Respond to City Comments Respond to City comments on the draft IS /MND. Task 4: Respond to Public Comments Respond to public comments on the IS /MND. Task 5: Prepare Mitigation Monitoring and Reporting Program Prepare of a mitigation monitoring and reporting plan for all mitigation measures identified in the IS /MND. The mitigation measures identified in the IS /MND must be clear, quantitative to the extent possible and must be written with an eye to monitoring. The MMRP provides direction on how and when to check in on each measure and who is responsible for signing off on each measure. Task 6: Meetings Attendance Attend two Planning Commission and one City Council meeting. Jaime Murillo March 26, 2008 Page 5 Schedule The IS /MND can be completed two to three weeks after receipt of the traffic study. Sirius will work closely with City staff to respond to staff comments and public comments. A graphic depiction of a tentative schedule is shown below. Month Apr May Jun Jul Aug Set Oct 1. Project Initiation 2. Prepare Draft ISa City Review 3. Respond to City Comments m: Circulation Period 4. Respond to Public Comments 5. City review /MMRP 6. Meetings/ Adopt MN * * * * ** a Assumes work starts at the beginning of April and traffic study is completed within 6 weeks of start of work Sirius Task ® City Review Public Review Jaime Murillo March 26, 2009 Page 6 Costs The following breaks down estimated labor costs for the three approaches to the project description (printing and other reimbursable costs would be in addition to this): Task Cost Task 1: Project Initiation $1,000 Task 2: Prepare Draft Initial Study Task 2b: Technical Analyses Project Description $1,000 Land Use $3,000 Aesthetics $3,000 Biology $1,000 Air Quality $5,000 Noise $5,000 Geology /Hydrology $2,000 Traffic (summarize traffic report) $3,000 Cultural Resources $2,000 Public Services and Utilities $2,000 Subtotal 27,000 Task 3: Response to City Comments (11 hours) $2,000 Task 4: Response to Public Comments (11 hours) $2,000 Task 5: Mitigation Monitoring and Reporting Plan $3,000 Task 6: Meetings -21 hours (2 Planning Commission $4,000 and one City Council) Total — $391000 T Jaime Murillo March 26, 2009 Page 7 The hourly rates for Sirius and consultant staff are as follows: Catenory Hourly Billina Principal $185.00 Senior Consultant $120.00 Associate $90.00 Administrative / Graphics /Clerical $75.00 Printing and other materials will be billed at cost. We appreciate this opportunity to present our proposal. If you have any questions concerning the attached proposal, or would like me to augment any aspect, please call me. Sincerely, 14 Wendy Lockwood Principal