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HomeMy WebLinkAboutC-4462 - PSA for City Hall and Park Project Translocation PlanX66.O13 C��L PROFESSIONAL SERVICES AGREEMENT WITH GLENN LUKOS ASSOCIATES, INC. FOR CITY HALL AND PARK PROJECT TRANSLOCATION PLAN THIS AGREEMENT is made and entered into as of this 100 day of J 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Co ration ( "City "), and GLENN LUKOS ASSOCIATES, INC., a California Corporation whose address is 29 Orchard, Lake Forest, California, 92630 ( "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 design and construct the new City Hall and Park Master Plan Project. C. City desires to engage Consultant to provide mitigation implementation services pertaining to Coulter's Saltbush in support of the new City Hall and Park Master Plan ( "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 Tony Bomkamp. 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 3151 day of December 2014, 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 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 Nineteen Thousand, Nine Hundred Ten Dollars and no /100 ($19,910.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 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 E 5. 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. 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 TONY BOMKAMP 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. ADMINISTRATION This Agreement will be administered by the Public Works Department by way of Jaime Murillo. JAIME MURILLO shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. E 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. C! 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. 5 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 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 0 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. In 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 8 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. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and N invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or 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. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 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. 10 25. 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 -3203 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Toy Bomkamp Glenn Lukos Associates, Inc. 29 Orchard Lake Forest, CA 92630 Phone: 949 - 837 -0404 Fax: 949 - 837 -5834 26. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, 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. 11 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 31. 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. 32. 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. 33. 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. ilK 34. 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. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: ynett e amp, Assistant City 4D6rney ATTEST: Leilani I. Brown, City Clerk Attachments C!Muni OF NEWP BEACH, Acipa ration BSte e . Badum, Pvblic orks Director GLENN LU MM S, INC.: Glenn Lukos, J'Lkcu. t% Chief Executive Officer and Treasurer Exhibit A —hof Services Exhibit B — Schedule of Billing Rates 13 .Lkos GLENN LUKOS ASSOCIATES October 6, 2009 [Revised December 1, 2009] Jaime Murillo Associate Planner City of Newport Beach P.O. Box 1768 Newport Beach, California 92658 Regulatory Services RECEIVED BY PLANNING DEPARTMENT la-03 2009 CITY OF NEWPORT BEACH SUBJECT: Revised Proposal to Provide Mitigation Implementation Services Pertaining to Coulter's Saltbush In Support of the City of Newport Beach City Hall and Park Development Plan Dear Mr. Murillo: Glenn Lukos Associates, Inc. (GLA) is pleased to submit this revised proposal to assist the City of Newport Beach in complying with the Special Conditions of the project Draft Environmental Impact Report (DEIR) relative to Coulter's saltbush (Atriplex coulter:). Specifically, the subject condition requires translocation of 18 individuals of the Coulter's saltbush to suitable areas. The attached scope of work provides a detailed account of each task necessary to successfully implement the translocation program. COST The proposed fee for performance of Tasks I through III, as presented in the attached scope of work, is $19,910 including direct costs. The scope provided below includes sufficient time for up to three meetings /and or teleconferences with the City and Resource Agencies needed to obtain approval of the plan. Supplementary services beyond the limits of this scope of work, if needed, are available from GLA on a time- and - materials basis. If major changes in the scope of work are required, the Client will be notified at the earliest possible time. 29 Orchard ■ Telephone: (949) 837 -0404 Lake Forest California 92630 -8300 Facsimile: (949) 837 -5834 Jaime Murillo Associate Planner City of Newport Beach October 6, 2009 [Revised December 1, 2009] Page 2 SCHEDULE Work will begin within one week following receipt of formal authorization to proceed (unless arranged otherwise with the client). Providing this proposal is acceptable, please so indicate by signing the attached Authorization for Professional Services and returning it to GLA. Your signature will constitute agreement to the terms set forth therein and will represent formal authorization to proceed. Should you have any questions regarding this revised proposal or the attached contract, please feel free to contact me at (949) 837 -0404. Sincerely, GLENN LUKOS ASSO S, INC. Glenn C. Lukos President s:0560- 13b.pro.doc m Enclosure SCOPE OF WORK MITIGATION IMPLEMENTATION SUPPORT SERVICES FOR COULTER'S SALTBUSH NEWPORT BEACH, CALIFORNIA The DEIR condition that addresses translocation of the Coulter's saltbush is as follows: Translocation of Coulter's Saltbush Population. Prior to commencement of grading activities, the City of Newport Beach (City) Director of Planning, or designee, shall verify that the City has contracted a qualified, experienced biologist to prepare a comprehensive translocation plan for Coulter's saltbush which includes the location of the suitable receptor site. The plan shall be prepared in cooperation with representatives from the United States Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG). The project biologist shall supervise and monitor implementation of the plan. Once the population of Coulter's saltbush on site is transplanted to the suitable receptor site, the project biologist shall monitor the population for 5 years, documenting the methods and results, including implementation of any requisite maintenance and /or remedial measures in annual reports. Establishment of a viable population shall be deemed successful and the performance standards met if at least half (i.e., nine) of the plants are evident in any given year following the third year of the monitoring period. This mitigation standard may be adjusted any time prior to the end of the monitoring period under mutual agreement by the City and the resource agencies (i.e., USFWS and CDFG), particularly if factors beyond human control limit the ability to establish a viable population of Coulter's saltbush within the 5 -year monitoring period. If it becomes apparent that the performance standards cannot be achieved, the City and resource agencies may agree to extend the monitoring period and/or implement remedial measures. Mitigation Measure 4.5.1, as approved by the City on November 27, 2009 provides for the following: Translocation of Coulter's Saltbush Population. Prior to approval of the grading plan, the City of Newport Beach (City) Director of Planning, or designee, shall verify that a translocation plan for Coulter's saltbush has been prepared by a qualified, experienced biologist. The plan shall include the following elements: • Location of one or two suitable receptor site(s), in an area or areas of suitable habitat, with adequate size to accommodate the existing population, as well as future growth of the population. • Procedures for site preparation and translocation of the existing population. • Preparation for and methods of salvaging and translocating the existing population, including the recovery of topsoil with existing seed bank. Blocks of topsoil shall be moved intact to the extent feasible. Identification of performance standards, i.e., at least half (nine) of the plants are evident in any given year following the third year of the monitoring period. This mitigation standard may be adjusted any time prior to the end of the monitoring period under mutual agreement by the City and the resource agencies (i.e., United States Fish and Wildlife Service [ USFWS] and California Department of Fish and Game [CDFG]), particularly if factors beyond human control limit the ability to establish a viable population of Coulter's saltbush within the 5 -year monitoring period. • Maintenance and monitoring provisions (for a minimum of 5 years) to promote and document the success of the effort. • Measures to be implemented if the translocation effort does not achieve the expected results. If it becomes apparent that the performance standards cannot be achieved, the City and resource agencies may agree to extend the monitoring period and /or implement remedial measures. The plan shall be prepared in cooperation with representatives from the USFWS and the CDFG. The project biologist shall supervise and monitor implementation of the plan, which shall be initiated prior to grading in the affected habitat area. Once the population of Coulter's saltbush on site is transplanted to the suitable receptor site(s), the project biologist shall monitor the population, in accordance with the plan provisions, including implementation of any requisite maintenance and/or remedial measures and documenting the progress in annual reports. TASK I. DEVELOP TRANSLOCATION PLAN A GLA biologist/botanist familiar with the ecology of Coulter's saltbush will prepare a comprehensive translocation plan for Coulter's saltbush, which includes the location of the suitable receptor site or sites. The plan shall be prepared in cooperation with representatives from the United States Fish and Wildlife Service ( USFWS) and the California Department of Fish and Game (CDFG). Consistent with the DEIR and adopted Mitigation Measure 4.5.1, the translocation plan will include the following components: • Location of one or two sites for translocation and biological rationale for selection of sites. • Methods for salvaging, storing (if necessary) and replanting individuals of Coulter's saltbush from the project site to suitable receptor site(s). • Site preparation methods for the receptor /translocation site or sites. • Provision for seed collection for purposes of propagation prior to translocation, which will provide "back -up" individuals to ensure the highest probability of success. • Methods for monitoring success of the translocation. • Maintenance Requirements. • Performance standards /success criteria. • Provisions for adjustment or modification of the success criteria. • Discussion of preparation of annual report for the five -year monitoring period. • Remedial Measures to be implemented during the five year monitoring period to ensure success. • Contingency Measures to be implemented should the translocation be determined to be unsuccessful at the end of the five year period. Also included in this task is time for coordination with the City and resource agencies (i.e., CDFG and USFWS) in order to obtain approval of the restoration plan by the resource agencies. (It is important to note the GLA prepared the Rare Plant Translocation plan for the Southern Sub- region HCP prepared for Rancho Mission Viejo. That plan included Coulter's saltbush and that plan has already been approved by USFWS and components of that plan will form the foundation of the plan prepared for the City). TASK II. IMPLEMENT TRANSLOCATION A GLA biologist/restoration specialist experienced in salvage and translocation of special- status plants will salvage the subject individuals of Coulter's saltbush. The salvaged individuals will be salvaged with surrounding soil, placed in appropriate containers for transport, short-term storage (if necessary) and ultimate transport to the relocation site(s). Once on the relocation site(s) the translocated individuals will be planted in areas prepared in advance for the translocation as set forth in the translocation plan. Included in this task is collection of seed (for propagation) prior to translocation of the subject plants, propagation, storage and introduction of propagated plants to the receptor site or sites. As noted, the use of propagated plants is a common technique to provide a "back -up" for the translocated individuals and is important as it ensures opportunities for remedial actions as needed. TASK III. FIVE YEAR MONITORING PROGRAM GLA will monitor the success of the translocated Coulter's saltbush for five years to document success of the translocation program. GLA understands that the program shall be deemed successful and the performance standards met if at least half (i.e., nine) of the plants are evident in any given year following the third year of the monitoring period. GLA also understands that the mitigation standard may be adjusted any time prior to the end of the monitoring period under mutual agreement by the City and the resource agencies (i.e., USFWS and CDFG), particularly if factors beyond human control limit the ability to establish a viable population of Coulter's saltbush within the 5 -year monitoring period. If it becomes apparent that the performance standards cannot be achieved, the City and resource agencies may agree to extend the monitoring period and/or implement remedial measures. As necessary, GLA will work with the City, CDFG and USFWS to modify the requirements if such is determined to be necessary by the City. Included in this task is preparation of five annual monitoring reports that would be submitted to the CDFG and USFWS after review and approval by the City. The annual reports will include an outline of the success criteria and the translocation program's success relative to the requirements. Site photographs, appropriate maps and tables will be included. 4 GLA's direct expenses shall be those costs incurred directly for the CLIENT's project, including, but not limited to, necessary transportation costs including mileage by automobile at the current rate allowed by IRS, meals and lodging, laboratory tests and analyses, retention and management of technical consultants, printing, and binding charges. Reimbursement for these expenses shall be on the basis of actual charges when fumished by GLA. An administrative charge of 15% shall be applied to all direct expense and subcontractor charges (this administrative fee has already been included in the cost estimate provided in this proposal). TASK TOTALCOSTS Develop Translocation Plan $4,090 Implement Tmislocation $3,690 Five Year Mitigation Monitoring $12,130 TOTAL 19,910 GLENN LUKOS ASSOCIATES Regulatory Services SCHEDULE OF FEES AND CHARGES through March 15, 2011 HOURLY LABOR RATES Principal -in- Charge $210 Senior Project Manager $165 Senior Habitat Restoration Specialist $105 Project Manager $105 -85 Habitat Restoration Specialist $105 -85 Assistant Project Manager $85 -55 Field Assistant $60 GIS Technician $85-65 Clerical $40 DIRECT EXPENSES GLA's direct expenses shall be those costs incurred directly for the CLIENT's project, including, but not limited to, necessary transportation costs including mileage by automobile at the current rate set by IRS, meals, laboratory tests and analyses, retention and management of technical consultants, printing, and binding charges. Reimbursement for these expenses shall be on the basis of actual charges when furnished by GLA. An administrative charge of 15% shall be applied to all direct expense charges. s:fee2009.doc 29 Orchard Lake Forest California 92630 -8300 Telephone: (949) 837 -0404 Facsimile: (949) 837 -5834 34. 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. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: ynett e amp, Assistant City 4D6rney ATTEST: Leilani I. Brown, City Clerk Attachments C!Muni OF NEWP BEACH, Acipa ration BSte e . Badum, Pvblic orks Director GLENN LU MM S, INC.: Glenn Lukos, J'Lkcu. t% Chief Executive Officer and Treasurer Exhibit A —hof Services Exhibit B — Schedule of Billing Rates 13 .Lkos