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HomeMy WebLinkAboutC-4514 - PSA for a Noise Measurements of the Port Restaurant and BarPROFESSIONAL SERVICES AGREEMENT WITH MESTRE GREVE ASSOCIATES, DIVISION OF LANDRUM & BROWN, FOR A NOISE MEASUREMENTS OF THE PORT RESTAURANT & BAR THIS AGREEMENT is made and entered into as of this 22nd day of March, 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and CJ MESTRE GREVE ASSOCIATES, DIVISION OF LANDRUM & BROWN, a California Corporation whose address is 27812 Ell Lazo Road, Laguna Niguel, California ( "Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to conduct measurements of the sound generated by the Port Restaurant & Bar when live entertainment is provided, pursuant to Condition No. 23 of Use Permit No. 1566 (amended 11/24/2009). The City also desires Consultant to provide noise control recommendations, if needed, in order to meet the City's exterior noise control standards. C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal member[s] of Consultant for purposes of Project, shall be Fred Greve. E. 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 22nd day of June, 2010, unless terminated earlier as set forth herein. 2. SERVICES T6 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 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 Three Thousand Six Hundred Eighty Dollars and no /100 ($3,680) 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 speck 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: 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. 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 FRED GREVE 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. 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 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 "), 4 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 speck 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. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written rl 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 The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization 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 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 W 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 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 bome 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. 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 -3229 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: 10 Attention: Fred Greve Mestre Greve Associates 27812 El Lazo Road Laguna Niguel, CA 92677 Phone: 949 -349 -0672 Fax: 949 -349 -0679 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. 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 11 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. 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. 12 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:3;0� n --- Leonie Mulvihill gest =-s•-�° Assistant City Attorney ATTEST: CONSU TANT: c r By: bw Leilani Brown, City Clerk , _ CITY OF NEWPORT BEACH, A Municipal Corporation By: D vid Lepo Planning Departm nt Director (Corporate Officer) Title:PrintName: By: (Wanciaf Officer) Title:A6an,%N nR 4)i t,-e-v'or Print Name: \/► ,j c e jbl e.t�Fr� Attachments: Exhibit A — Scope of Services & Schedule of Billing Rates F:\users\cat\shared\ContractTemplatesPublishedonlntranet\FORM — Professional Service Agreement.doc Rev: 03.05.09 13 LANDRUM & BROWN, INCORPORATED RESOLUTION SEPTEMBER 4, 2009 The undersigned, as Secretary of Landrum & Brown, Incorporated ("Corporation") hereby certifies that the following is a copy of a resolution of the Board of Directors of the Corporation adopted by the Board in accordance with the State of Ohio Revised Code. Resolved, that Mr. Vince Mestre and Mr. Fred Greve, Managing Directors of the Corporation, are hereby given the authority to execute contracts for noise control studies, air resources engineering, studies for development projects, and air, noise, and greenhouse gas studies for environmental assessments up to fifty thousand dollars ($50,000) on behalf of the Corporation, including any related forms, transmittals, affidavits, disclosures, or other documents related to said contracts. The undersigned has set his hand this 4th day of September 2009. ,e Z 6--Z Z — Dennis E. Peters Secretary [ CORPORATE SEAL ] Mestre Greve Associates December 1, 2009 Mr. Jaime Murillo City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Subject: Proposal for Noise Measurements for the Port Restaurant and Bar. Dear Mr. Murillo: Thank you for the opportunity to bid on conducting noise measurements for the Port Restaurant and Bar located at 440 Heliotrope Avenue in Corona del Mar district of the City of Newport Beach. Live entertainment is expected to be provided by the restaurant. The focus of the study will be to determine if existing noise levels are consistent with the City's Noise Ordinance. The following scope of work is proposed. Scope of Work Task 1— Noise Measurements. We will conduct noise measurements at three exterior locations at the nearest noise sensitive receptors. These measurements will be done in the late evening, and then repeated again after 10:00 p.m. This will allow us to determine whether the restaurant is meeting the City's noise ordinance standards for both the day and the nighttime periods. We will also conduct an interior noise measurement in the restaurant in order to obtain an indoor noise level. This will help to determine what the maximum operational noise limit would be in the interior of the restaurant that would result in compliance with the noise ordinance. The measurements will be made in a manner consistent with the City's Noise Ordinance. All of our noise meters are Type 1 systems, which are the highest quality available for field measurements, and will be calibrated with certification traceable to the National Institute of Standards and Technology. The results of our testing will be presenting in a letter report. Task 2 — Noise Control Recommendations. If noise levels from the live music exceed the noise ordinance limits, and a slight adjustment in the volume is not adequate to meet the noise standard, mitigation measures will be recommended in order to meet the exterior noise standard. If the standard cannot be met with such an adjustment, we will provide noise control recommendations that may include the use of a noise barrier, acoustical panels, or an enclosure for the atrium. 27812 El Lazo Road • Laguna Niguel, CA 92677 • (949) 349 -0671 • Fax (949) 349 -0679 Port Restaurant Noise Measurements Page 2 Cost. We propose to do this study on a fixed fee basis of $3,680. Task 1 will be completed on a fixed fee basis. The complexity of Task 2 is not known at this time and may not be needed. Therefore, the cost for Task 2 will be billed on a time and materials basis with cost not to exceed as shown below. This cost includes all manpower, equipment, computer, and overhead expenses to complete the study. Our hourly rates are $180 for Managing Directors, $160 for Project Manager, $90 for Senior Consultants and $65 for Analysts. Please note that Mestre Greve Associates is now owned by Landrum & Brown. If approved the contract would be with Landrum & Brown operating through its division Mestre Greve Associates. Category MD PM SC CT AT PA Hourly $180 $160 $90 $75 $65 $80 Fixed Daily $1,440 $1,280 $720 $600 $520 $640 Cost Total Number Task 1 - Noise Measurments: 0.5 Task 2 - Mitigation Measures: 1.5 1.5 $ 20 $ 1,520 $ 2,160 Total (Days) 0.5 0 0 0 1.5 0 $ 20 $ 3,680 MD - Managing Director FG, VIA PM - Project Manager CV, MJ SC - Senior Consultant TR CT - Consultant TM, MH AT - Analyst KT PA - Project Administrator GS If this proposal is acceptable to you, please sign on the line below and return the letter to our office (via fax is acceptable). The signed letter will serve as a binding contract for our services and once we have received the signed letter we will initiate the work. Sincerely, Mestre Greve Associates Division of Landrum & Brown Fred Greve, P.E. Managing Director City of Newport Beach Date 2 000" e AWatlon Clann/n9 of Me LWdag Edge To: Leilani I Brown, City Clerk, City of Newport Beach From: Gail Stone Cc: Date: 04/09/2010 Re: Contract No. 4514 Ms. Brown, Enclosed please find three executed Contracts No. 4514 for the Port Restaurant & Bar project. Best regards, Gail Stone Project Administrator Mestre Greve Associates A Division of Landrum & Brown 27612 El Lazo Road Laguna Niguel, CA 92677 949.349.0671 1 949.349.0679 fax www.landrum-brown.com A`CO'RZX CERTIFICATE OF LIABILITY INSURANCE OP ID LS ° " "'M °DIYYYYI V LANDR -1 03/17/10 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Schiff, Kreidler- shell, Inc. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 1 West Fourth St. Suite 1300 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Cincinnati OR 45202 Phone: 513- 977 -3100 INSURERS AFFORDING COVERAGE NAIC# DISUSED I,$.,ED- 12777 Landrum & Brown Inc. INSaRERB L..a..n A-.I -.. m..r.... n .�... —._. _. . Neatre Greve Associates Inc. -'- Attn: Pat Boykin,La1ac 11279 Cornell Park Drives -RSRD Cincinnati OR 45242 — -'— COVERAGES 1..E ROUGES 11 INS'JR.UCE S "EC KELP ", rnuE CFEE ISSJEC IC '.0 I15LaE� N:111.0 •:E [CO +FE PQ LY °SR.C]:N- :ATE' NCIOHSTANDNC SHOULD YIYOF ME PROVE OES<RIDEO ROUCIE9 DE CAX2LLE° R[PORE iME EAMATXSX CI•CYN -6 DATE THEREOF.HAS ISSUING INSURER WLL ENDEAVOR RU PAUL 30 MYST WRITTEN City of Newport Beach, P4..1.1 RFIJENI III pa LEND T OII GF aNr CINTA11 OR UlnEa OCCJNENT:.r G. aIIIECT -O v..+LN T.nS CFRI. CA IF NN, 5E.SSNEDGR California IMPOSE NO OBLIGATION MEABIDIY°f ANY MIT UPON WEIXRVREA. ITS .SOEN190R Attn: Kay Sims, Planning Dev. M. 1.1x11 T.rE Irr3..anrICF+F,OapELRr ME AO -KITS OE1I °EC 411E N.15 R:IT TC 1t1 IxF TERNS e/C L S,CNS 1NC - CNDFCNS CF 3ULn AUWORREDREPRESENTATIVE Newport Beach CA 92663 ..AIC.E3 dSORFSIIF, Li.l'TE SrvCAnIaS T.P,E BEEN REOJLE] Cv cPrO CL5 LIS _ POR PORK1.N. RATION 1..AHECiIVE •iE lMwoonrrW O/YYYYS LMR° GE NERAL UNBIIITV EACH OCCURRENCE .5 1,000,000 A %'. CIAI•]ERCacFNER O Ar A. L +' 35786142 01/23/10 01/23/11 PAGE TO REN RA TED ESAF.ESR.W.W.W. Is 1,000, 000 ..Alnrs!I•cE X ocuR NEC EXP IXIN W.. F—H s 10,000 .... .. _. _.. ... - .. -- -. -- �RECNAAL 'S 1,000,000 . GENERAL AGGREGATE : 3 2,000, 000 GP HITF': N. A'RF3 PER r FpOwc iS-CCNPV A. E 2,000, 000 % .CT LIX Emp. Ben. 1,000,000 P.TOMOSITE LIABILD1 CPAB.NEDSPIDLE LIMIT if 1,000, 000 A X AA.TO 74968374 01/23/10 01/23/11 ISa.m D L 11.1. A.T. ' BODEV IIUUar s NF]L:LLDPN._s . LPW PW.WH A % wEC_L.GS A R _ N 'T . _. ..__. _.. PROPERTY CARTAGE . UATURITY AUTO IXXY. FA ACCIDENT _ 5_._�.______.._ I"__i.. - EP 1 OI.. THAN ACC 5 AUTO ONLY PGG I SIR.I UMeA.ItA uA.IETY EACR OCCHRACRE. .s 7,000,000 A X CccJ. culNS MmE 79839506 01/23/10 01/23/11 1 Is 7,000,000 I JED',CiBAi y X HE'D,., s none 5 WORAERS COMPENSATHIN WL Si"1µ r % °TK . AYCENPLOIERS'W °TRAY YIN TORYLNUTE —_ER A AN+R.— ST1ORRARTNEREALCOTIVC 71709699 01/23/10 01/23/11 EL EACXALCTOfNT T 1_,_0.00_,_000_ CIA -EA u`0aA E¢WOED' ❑ '- .. - -"-- -' M.rWM.M1 rn xNl [:. et). ]tt TllI- S qR EL DDSASE -EAENL LCOE A S 1, D00 000 , rlrol WfeM Wrr CIS SPECYLPPOLIb OIS Um EL MORASS, IWILY4N:T 1,000, ODO oTHfR B Professional Liah LHR721238 01/23/10 01/23/11 Limit $1,000,000 Architect /Engineer Ded. $15,000 DESLWPTIO„ CF OPERATIONS I WLAT"S r VEHICLE51 CSC W SIO°b ADMO BV ENDORSEMENT I SPECIALPROWSWNS The City, its elected or appointed officers, officials, employees, agents and volunteers are listed as additional insureds on a primary and noncontributory basis with respect to liability arising out of work performed by or on behalf of the Consultant. Waiver of subrogation applies CERTIFICATE HOLDER CANCELLATION ACOHD z5 (2UU9/Ul ( ©1988 -2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD YIYOF ME PROVE OES<RIDEO ROUCIE9 DE CAX2LLE° R[PORE iME EAMATXSX CI•CYN -6 DATE THEREOF.HAS ISSUING INSURER WLL ENDEAVOR RU PAUL 30 MYST WRITTEN City of Newport Beach, NOTICE TO WE CERTWICATE HOLDER NAMED TO THE LEfL BUT FAILURE TO DO 30 SKAU California IMPOSE NO OBLIGATION MEABIDIY°f ANY MIT UPON WEIXRVREA. ITS .SOEN190R Attn: Kay Sims, Planning Dev. 3300 Newport Boulevard AUWORREDREPRESENTATIVE Newport Beach CA 92663 William S. Culp ACOHD z5 (2UU9/Ul ( ©1988 -2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER This Certificate of Insurance does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. IE Liability Insurance CM1J66 Endorsement Policy Period JANl1ARY 23, 211141 TO JANUARY 23, 2011 Effective Date JANUARY 23, 20141 Policy Number 3578 -61 -42 CM Insured LANDRUM & BRONVN INC Name of Company FEDERAL INSURANCE COMPANY Date Issued FF,BRUARY 9.2010 This Endorsement applies to the following forms: GENERAL LIABILITY �ztze� Under Conditions, Transfer Or Waiver Of Rights Of Recovery Against Others, the following provisiun is added: Conditions Transfer Or Waiver Of Iluwever, we waive any right of recovery we may have against the designated person or Rights Of Recovery orgunizatidm shown W, ow because of payments we make for injury or damage arising out of your Against Others ongoing operations or done under it contract with that person or organization mad included in die products - completed operations hazard. This waiver applies to (lie designated person or organization. Liabitily Insurance Condition — Waiver Of Transfer Of Rights Of Recovery continued Form 80- 02.2362 (Rev. 4 -01) Endorsement Page t Cond t ons Transfer Or Waiver Of Designated Person Or Organization Rights Of Recovery ANY AND ALL PERSONS OR ORGANIZATIONS WHICH WE Against Others OBLIGATED TO WAIVE SUBROGATION AGAINST, AS A (condnued) RESULT OF A SIGNED CONTRACT, WHICH IS DATED PRIOR TO THE OCCURRENCE. All other terms and conditions remain unchanged. AufhedzW Representable Ua6zRty Insurance Condition - Welver Of transfer Of Rights Ol Recovary teat page Form "-2362 (Rev. 4.01) Endorsement Page 2 WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE POLICY WC 99 03 04 (Ed. 7 -08) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA This endorsement changes the policy to which it is attached effective on the inception date of the policy unless a different dale is indicated below. (The tdfawing "atWhng clause` need be comptated only when thle endorsement is issued subsequent to preparailon d the policy.) This endorsement, effective on 01/23/10 RATE) Policy No. (11)7170 -90-99 issued to LANDRUM & BROWN, INC Endorsement No. at 12:01 A. M. standard time, forms a part of of the FEDERAL INSURANCE COMPANY (NAME OF INSURANCE COMPANY) Authorized ePtes9n1aI We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. The additional premium for the blanket waiver offered by this endorsement shall be i.00% of total California premium. Schedule Person or Organization CITY ATTORNEY, CITY OF LOS ANGELES, C/O DEPT. OF AIRPORTS, P.O. BOX 92216. LOS ANGELES, CA 90009 COUNTY OF ORANGE, C/O RISK MANAGEMENT, P.O.13OX 327, SANTA ANA CA 92702. JOHN WAYNE AIRPORT PROJECT SARES -REGIS GROUP, SAG GROVE LLC, THE GROVE AT MARKETPLACE, REGIS CONTRACTORS LP, PHILADELPHIA STREET CAPITAL LLC C/O UBS 18825 BARDEEN AVE. IRVINE, CA 92812 City of Newport Beach WC 99 03 04 (Ed. 7-08) Job Description THE GROVE AT MARKETPLACE WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE POLICY WC 124 (4 -84) WC 00 03 13 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement changes the policy to which It is attached effective on the inception date of the policy unless a different date Is Indicated below. Mw following "attaching dause" need be completed only when this endorsement Is issued subsequent to preparation of the POAcya This endorsement, effective on 01/23/10 (DATE) Policy No. (11)7170 -96 -99 Issued to LANDRUM & BROWN, INC Endorsement No. at 12:01 A. M. standard time, forms a part of of the FEDERAL INSURANCE COMPANY (NAME OF WSURANCE COMPANY) We have the right to recover our payments from anyone liable for an Injury covered by this #uIlcy. We will not enforce our right against the person or organization named in the Schedule. This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.' This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule. Schedule PLANNING & DEVELOPMENT DIVN. CITY & COUNTY OF DENVER, 8500 PENA COLUMBUS MUNICIPAL AIRPORT AUTHORITY, & BOLTON FIELD, 4600 INTERNATIONAL JFK INTL AIR TERMINAL, THE PORT THE CITY OF NY8 BLVD., FT. WORTH TX 76155 TERMINAL BLDG. THIRD FLOOR, P.O. BOX CITY OF CHICAGO, DEPT: OF PROCUREMENT #403, CHICAGO, IL 60602 CITY OF PHOENIX, ARIZONA, AVIATION DEPT, 3400 SKY HARBOR BLVD. PHOENIX, AZ 85034 BLVD., DENVER, CO 80249 -6340 PORT COLUMBUS INTERNATIONAL AIRPORT GATEWAY, COLUMBUS, OH 43219 AUTHORITY OF NY AND NJ, ITS OFFICERS & AMR CORPORATION, 4333 AMON CARTER MARYLAND AVIATION ADMINISTRATION, 8766, SWI AIRPORT MD 21240 SERVICES, 121 N. LASALLE ST., Conditions Duties In The Event Of F. Knowledge of an occurrence or offense by an agent or employee of the insured will not Occurrence, Offense, constitute knowledge by the Insured, unless an officer (whether or not an employee) of any Claim Or Suit insured or an aflicer s designee knows about such occurrence or offense. (continued) G. Failure of an agent or employee of the insured, other than an officer (whether or not an employee) of any insured or an officers designee, to notify us of an occurrence or offense that such person knows about will not affect the insurance afforded to you. II. If a claim or loss does not reasonably appear to involve ibis insurance, but it later develops into a claim or loss to which [his insurance applies, the failure to retort it to us will not violate this condition, provided the insured gives us immediate notice as soon as the Insured is aware that this insurance may apply to such claim or loss. :�Y.�dRL' 1545. YftYk '6:T":e;.Y9.+.¢W::.e�'C"xbS: .:L YixE�'<Ki60Y.1tY'kki:63R??.Cmx: Sal: Pb�' Sueeu_ a�saYRYr. fi:: rYY. SM- SY«: e: YV>.? 4f' eakA�'?. k.'. �Y. GSSJ. E: SSR, S4" a:'. EYS ita' a9XR :ilE.CiRaak..xRNX69L'.5,kSf.' Legal Action Against Us No person or organization has a right under this insurance to: • join us as a party or otherwise bring us into a suit seeking damages from an insured; or • sue us on this insurance unless all of the terms and conditions of (his insurance have been fully complied with. A person or organization may sue us to recover on an agreed setoement or on a final judgment against an insured obtained after an actual: trial in a civil proceeding, or arbitration or other alternative dispute resolution proceeding; but we will not be liable for damages that are not payable under [fie terms and conditions of this insurance or that are in excess of the applicable Limits Of Insurance. a' wed:.: RX` a' C�YS: nSSe` Hi#, Eiti?:?:: Y3U:» wA�i! xYo}`. ike9�. C0:' 4' G4E` D. S'. dkklA9' otiiNa4? J) 51�;; CD. C>' i:.:. A::>?. YR: x�. YMx�. 52E.: G:: Y.`: RYp. Y} Y.StihA�A'AYQLtY<Aw,..�.:gH.�Yr£ ASP. �S. ti�".< SA' EE#.Sn'tX#4.YKRYM(m�!�FY�"#R"� Other Insurance If other valid and collectible insurance is available to the Insured for loss we would otherwise cover under this insurance, our obligations are limited as follows. Primary Insurance This insurance is primary except when the Excess Insurance provision described below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in the Method of Sharing provision described below. Excess Insurance This insurance is excess over any other insurance, whether primary, excess, contingent or on any other basis: A. that is Fire, Extended Coverage, Builders Risk, Installation tusk or similar insurance for your work; B. that is insurance that applies to property damage to premises rented to you or temporarily occupied by you with pernrission of the owner; C. if the toss arises out of aircraft, autos or watercraft (to the extent not subject to the Aircraft, Autos Or Watercraft exclusion); LW id* Insurance Form 80.02 -2000 (Rev. 4 -01) Contract Page 22 or 32 NE CHUERIE3 Conditions Other Insurance (continued) General Liability D. that is insurance: provided to you by any person or organization working under contract or agreement for yio; or 2, under which you are included as an insured; or E. that is insurance under any Property section of this policy. When this insurance is excess, Nye will have no duty to defend the insured against any snit if any other insurer has a duty to defend such insured against such suit. If no other insurer defends, we will undertake to do so, but we will he entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of loss, if any, that exceeds the sum of the total: • amount (hut all other insurance would pay for loss in the absence of this insurance: and of all deductible unit self- insured amounts under all other insurance. We will shave the remaining loss, if may, with any other insurance that is not described in this Excess Insurance provision and was not negotiated specifically to apply in excess of the Limits Of Insurance shown in the Declarations of this insurance. Method of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this method each insurer contributes equal amounts until it has paid its applicable finals of insurance or none of the loss remains, whichever comes first. If any of the other insurance dares not permit attribution by equal shares, we will contribute by limits. Under this method, each insurers share is based on the ratio of its applicable limits of insurance to the total applicable limits of insurance of all insurers. : x�: a:.. n:« e�y' isL�. u<: �r+ x,„ �. S: n�ytfi�rbi. ��` i". eE�?v.. ialL%:` M�^ SEF3T' A.°, iYi: Yk}_ Ricub.. N3JiY�G:° 3°.. �. �SY'.£ x..'%f 5%•• ii:' a' Am�� «�••ir:.X'yL`.$ini.':$'Sf.`� .�fa�.Vw'Jk�.�.H4i$�vw :$Cwt` .SR�:ii : :k:My�e`G. j :<%�fYNK'.i��'< Premium Audit We will compute all premiums for this insuram;e in accordance with our rules and rates. In accordance with the Estimated Prenaums section of the Premium Summary, premiums shown with an asterisk (') are estimated premiums and are subject to audit. In addition to or in lieu of such designation in the Premium Summary, premiums may be designated as estimated prenaunns elsewhere in this policy. In that ease, these premiums will also be subject to audit, and the second paragraph of the Eslinnatid Premiums section of the premium Summary will apply. :f.�Ln'Xe"?dx�d?iEA�:SS4:8�i : �iCtac. II. F4# BbTZ�L' k` RY: �ma :N.6ixsif :'sf«4i�i.>ia3ua>�Y3 H: rtiS: 1: i4W. L�' aS•:• i. 4," �fi' s' tr�'.f S :T;:i:}muE�R."vlErk #$ #SKfiY£�F'. �K6o"" �. 3"> fizS" a' �i'$ 3." w8#Y£EF�xN'.LN::re {;ti:Y???£S :f Separation Of Insureds Facept with respect ha the Limits Of Insurance, and any rights or duties specifically assigned in this insurance to the first utmned insured, (his insurance applies: as if each named insured were the only mmned insured; and separately to each Insured against whom claim is made or suit is brought. •".R;m5i33i;�:� w'? Sae'# �. id4YeERe ..ai ;ax;3's >. :a5£ :G.t9?. Uanilily inswance Form 80.02.2000 (Rev. 4 -01) Contract