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HomeMy WebLinkAboutC-4519 - PSA for Environmental Consulting Services for 1691 San Miguel Subdivision ProjectPROFESSIONAL SERVICES AGREEMENT WITH KEETON KREITZER DBA KEETON KREITZER CONSULTING FOR ENVIRONMENTAL CONSULTING SERVICES FOR THE 1691 SAN MIGUEL SUBDIVISION PROJECT THIS AGREEMENT is made and entered into as of this 1!day of April, 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and Keeton Kreitzer, doing business as (DBA), Keeton Kreitzer Consulting (KKC), a sole proprietorship, whose address is 17291 Irvine Boulevard, Suite 305, Tustin, California, 92780 ( "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 prepare an environmental assessment of potential environmental impacts associated with the proposed 1691 San Miguel Drive Subdivision project. C. City desires to engage Consultant to ensure that the environmental review process is carried out in accordance with the California Environmental Quality Act ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[sj of Consultant for purposes of Project, shall be Keeton Kreitzer. 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 follow: 1. TERM The term of this A reement shall commence on the above written date, and shall terminate on the lidl day of April, 2012, 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 EIGHTEEN THOUSAND, SEVEN HUNDRED AND TEN DOLLARS AND 251100 ($18,710.25) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be 2 limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Keeton Kreitzer 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 Planning Department. Russell Bunim shall be the Project Administrator and shall have the authority to act for City S 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. 0 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION 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. 61 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. (This requirement is waived per the signed Certificate of Exemption which is attached as Exhibit C) ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 7 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 parry except after thirty (30) calendar days (10 calendar days written notice of non- payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 0 21. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25, CONFLICTS OF INTEREST 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. 10 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Russell Bunim Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3233 Fax: 949 - 644 -3229 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Keeton Kreitzer Keeton Kreitzer Consulting 17291 Irvine Boulevard, Suite 305 Tustin, CA 92780 (714)665 -8509 Fax (714) 665 -8539 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting parry 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 11 termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 39. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. AMENDMENTS 12 This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: eonie Mulvihill Assistant City Attorney \ ve l� ATTEST: �L ila I Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: D Kiff City Manager CONSULTANT: Keeton Kreitzer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Certificate of Exemption F:\USERS\PLN\Shared\Professional Services Agreements & Contracts\Neutra Medical Arts Building\Keeton-Professional Service Agreement 2.docx `K3 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES TENTATIVE TRACT MAP 17355 AND PC DEVELOPMENT PLAN AMENDMENT PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES TENTATIVE TRACT MAP 17355 AND PC DEVELOPMENT PLAN AMENDMENT NEWPORT BEACH, CA SCOPE OF SERVICES I. WORK PROGRAM A work program has been developed to ensure that the environmental review process is carried out in accordance with the California Environmental Quality Act (CEQA) and the City of Newport Beach adopted CEQA procedures. The scope of services envisioned by Keeton Kreitzer Consulting (KKC) to complete the work identified in this proposal includes: (1) the provision of competent, effective environmental analysis project management; (2) incorporation of existing and additional technical studies that have been (or will be) prepared for the proposed project (e.g., hydrology, preliminary geotechnical analysis, Phase I Environmental Site Assessment, etc.); (3) preparation of the environmental documentation (i.e., initial study /mitigated negative declaration); (4) processing of the environmental documentation and public participation; (5) preparation of the final environmental document; and (6) preparation and filing of CEQA notices. These several objectives will be achieved through the completion of several work tasks. Each of these work tasks has been identified and described below. Task One - Proiect Initiation /Coordination KKC will be responsible for managing and coordinating all of the work to be undertaken to prepare the required environmental document (i.e., proposed [Mitigated) Negative Declaration). Project coordination will be an integral part of the planning process. As such, KKC proposes to have a Project Initiation Meeting as the first step in that process. That meeting will be held at the first available time after the contract has been awarded and executed. Participants in the meeting will include representatives of the City of Newport Beach, KKC, applicant's technical consultants (if determined necessary), and project representatives deemed necessary to provide direction in the planning and environmental review process for the proposed project. Topics of discussion will include the definition of the project description, identification of responsible agencies and sources of information, and the project schedule. In summary, this task will include the following sub -tasks Consultation and coordination of the proposed project and environmental document with the City of Newport Beach to ensure that City policies are incorporated into the Draft environmental document; Assurance that the Draft environmental document meets the requirements of CEQA, the State CEQA Guidelines, and the City's CEQA procedures; and Coordination with City staff and attendance at up to two (2) meetings with City staff as indicated above. Estimated Time Frame: As Required Estimated Budget: $1,200.00 Proposal for Environmental Consulting Services Tentative Tract Map 17355 and PC Development Plan Amendment March 23. 2010 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES TENTATIVE TRACT MAP 17355 AND PC DEVELOPMENT PLAN AMENDMENT Task Two — Cultural and Paleontological Resource Records Surveys Because the subject property has been altered as a result of grading that was necessary to accommodate past development, a walkover survey cultural resources /paleontological survey will not be undertaken. However, KKC will conduct a records survey at the South Central Coastal Information Center (SCCIC) located at California State University, Fullerton to determine the location(s) of any archaeological /cultural resource sites that may have been recorded on the subject property and/or within a one -mile radius of the site. In addition, a records survey will also be conducted at the Los Angeles County Museum of Man to document the existence /proximity of paleontological resources. The results of the records surveys will be documented in the Initial Study prepared for the proposed project. Estimated Time Frame: 2 Weeks Estimated Budget: $750.00 Task Three A) — Preliminary General Plan Policv Analvsis The initial step in Task Three will be the completion of a preliminary analysis of relevant General Plan policies to determine if the project does not comply with one or more of those policies. Based on guidance and direction from the City, the consistency analysis will identify the relevant policies in each element of the Newport Beach General Plan, including the Land Use, Housing, Historical Resources, Circulation, Recreation, Natural Resources, Safety, and Noise Elements. The project's consistency (or inconsistency) with each of the relevant policies will be evaluated based on the specific project parameters in order to determine if a significant conflict would occur that could not be avoided. The consistency analysis will be submitted to the City of Newport Beach for review prior to proceeding with Task Three (B) to determine if a policy conflict exists that cannot be mitigated. It must be understood that should it be determined that one or more potential environmental impacts (i.e., significant policy conflicts) cannot be mitigated to an acceptable level (i.e., less than significant) as required by CEQA and the State CEQA Guidelines, it will be necessary to prepare a (focused) environmental impact report (EIR). In this case, the City will notify the applicant of the determination that an EIR will be required and a scope of work and budget for the focused EIR (including the remainder of the initial study) would be prepared and submitted to the City for approval prior to initiating work on that document. Estimated Time Frame: 2 Weeks Estimated Budget: $3,540.00 Task Three (B) — Completion of the Initial Study/Mitigated Negative Declaration If it is determined that no significant policy conflicts would result from project implementation based on the preliminary General Plan Policy Analysis conducted in Task Three (A), KKC will be responsible for the preparation (i.e., completion) of the initial study for the proposed TTM 17335 project. Based on a review of the State CEQA Guidelines, the proposed project is neither statutorily nor categorically exempt. Therefore, it would be subject to CEQA review. In order to achieve the objective of preparing a (Mitigated) Negative Declaration, the initial study must necessarily be extensive and thorough. Each of the remaining topics identified on the City's environmental assessment form or, if desired by the City, on the State CEQA Guidelines will be analyzed to document the nature and extent of any potential environmental consequences (and the need for mitigation). The specific purpose of the analysis will be to document the lack of adverse environmental impacts associated with the proposed residential project to support the Proposal for Environmental Consulting Services Tentative Tract Map 17355 and PC Development Plan Amendment March 23, 2010 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES TENTATIVE TRACT MAP 17355 AND PC DEVELOPMENT PLAN AMENDMENT environmental determination that no significant impacts will occur (following mitigation) as a result of project implementation. Based on the proposed project, it is anticipated that any potentially significant environmental impacts that would be anticipated can be mitigated, resulting in the preparation of a mitigated negative declaration. As reflected above and in the work program, KKC has presented a scope of work for the preparation of an Initial Study /Mitigated Negative Declaration (IS /MND). The proposed IS /MND will be submitted to the City of Newport Beach for review and comment. KKC will revise the initial study based on the comments made by City staff and prepare the Draft IS /MND. Once cornpleted, the Draft document will be distributed for a 30 -day public review and comment period as required by the State CEQA Guidelines for local project. KKC will be responsible for distributing the document to the list of recipients developed by the City. KKC will also be responsible for posting the Notice of Intent to Prepare a Negative Declaration both at the Orange County Clerk- Recorder's Office and at the City of Newport Beach. Estimated Time Frame: 4 Weeks Estimated Budget: $6,480.00 Task Four - Preparation of the Final Negative Declaration KKC, in cooperation with the Newport Beach Planning Department staff, will prepare written responses to all relevant comments received during the public review and comment period. These responses will be submitted to the City of Newport Beach for review prior to completion of the Final Negative Declaration. It is important to note that the budget identified below reflects a limited amount of public comments. This budget may be revised if, after a thorough review of all comments received on the Draft (Mitigated) Negative Declaration, it is determined that it is inadequate to respond to all of the comments received on that document. Estimated Time Frame: 1 Week Estimated Budget: $920.00 Task Five - Public Hearings If requested by the City, KKC will attend two (2) public hearings, including one before the Newport Beach Planning Commission and one before the City Council. The Principal /Project Manager will attend the public hearing and will be responsible for making all presentations and responding to questions raised during the public hearing. Should additional hearings be required, they will be charged at the appropriate hourly rate. Estimated Time Frame: As Required Estimated Budget: $1,200.00 Task Six - Preparation of Legal Notice /Advertisement and Notice of Determination KKC will be responsible for preparing both the requisite legal notice for the public advertisement and the Notice of Determination that must be filed in the office of the Orange County Clerk- Recorder and with the State Clearinghouse. Once completed, these forms will be submitted to the City for review. KKC will also be responsible for filing these notices with the State Clearinghouse and Orange County Clerk- Recorder. It Proposal for Environmental Consulting Services Tentative Tract Map 17355 and PC Development Plan Amendment March 23, 2010 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES TENTATIVE TRACT MAP 17355 AND PC DEVELOPMENT PLAN AMENDMENT is important to note, however, that the filing fees are not reflected in the estimated budget for miscellaneous expenses. Although total budget includes the NOD filing fee that must be paid to the Orange County Clerk- Recorder at the time the NOD is filed, it does not include the Department of Fish and Game filing fee, which must also be paid to the Orange County Clerk- Recorder at when the NOD is filed, if it is determined that the project is not exempt from the fee. Estimated Time Frame: 1 Day Estimated Budget: $460.00 II. PROJECT SCHEDULE A project schedule has been developed and presented below that reflects the time frames that will be necessary to undertake and complete the services outlined in this proposal. The project schedule is presented below. Project Schedule Proposed Tentative Tract Map (TTM) 17335 and PC Development Plan Amendment Newport Beach, CA Task Description Estimated Time 1 Project Initiation /Coordination As Required 2 Archaeo /Paleo Records Surveys 2 Weeks 3A General Plan Policy Analysis 2 Weeks 3B Initial Stud /Ne ative Declaration 4 Weeks City Review 1 Week Revisions /Draft MND 1 Week Public Review and Comment 4 Weeks 4 Final Mitigated Negative Declaration 1 Week 5 Public Hearings As Required 6 Filing Legal Notices 1 Da 'If additional technical studies are required, this task may require additional time. III. ESTIMATED BUDGET The scope of services and work described in Section I will be undertaken and completed for a not -to- exceed fee of $18,710.25. This fee includes meetings and coordination, preparation of the environmental analysis contained in the initial study, preparation of necessary CEQA notices and printing as indicated below, and attendance at two (2) public hearings associated with the Initial Study/ Negative Declaration. A budget summary is presented below. Proposal for Environmental Consulting Services Tentative Tract Map 17355 and PC Development Plan Amendment March 23, 2010 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES TENTATIVE TRACT MAP 17355 AND PC DEVELOPMENT PLAN AMENDMENT Budget Summary Proposed Tentative Tract Map (TTM) 17355 and PC Development Plan Amendment Newport Beach, CA Title Man -Hours I Billing Rate Estimated Budget Task One — Project Initiation /Coordination Principal 1 8 1 $150.00 /Hour $ 1,200.00 Task Two — Cultural Resource Surve /SB 18 Consultation Records Surve /SB 18Consultation I I T_$ 750.00 Task Three A — General Plan Pollev Anal sis Project Manager 32 $115.00 /Hour $ 3,680.00 Word Processing 4 $ 40.00 /Hour $ 160.00 Sub -Total 36 $ 3,840.00 Task Three B — Initial Stud /Miti ated Declaration Project Manager 48 $115.00 /Hour $ 5,520.00 Graphics 8 $ 60.00 /Hour $ 480.00 Word Processing 12 $ 40.00 11-lour $ 480.00 Sub -Total 68 $6,480.00 Task Four — Final Ne ative Declaration Project Manager 8 $115.00 /Hour $ 920.00 Task Five — Public Hearings Principal 1 8 1 $150.00 /Hour $ 1,200.00 Task Six - Legal Notices /Notice of Determination Project Manager 1 4 $115.00 /Hour $ 460.00 Printin and Re roduction Printing and Reproduction $ 1,500.00 Postage and Supplies $ 300.00 NOD Filing Fee $ 50.00 CDFG Fee $ 2,010.25 Sub -Total $ 3,860.25 TOTAL NOT -TO- EXCEED FEE 132 $18,710.25 'Includes attendance at two (2) public hearings, including one before the Planning Commission and one before the City Council. Attendance at additional hearings are not included and would be billed on a time - and - materials basis at $150.00 /hour. 2Includes printing of fifty (50) copies of the IS /MND and distribution of the IS /MND via certified mail. 'Total does not include the following fees: (1) sub - consultant fees that may be required; and 2 fees for legal notices. Proposal far Environmental Consulting Services Tentative Tract Map 17355 and PC Development Plan Amendment March 23, 2010 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES TENTATIVE TRACT MAP 17355 AND PC DEVELOPMENT PLAN AMENDMENT IV. BILLING AND PAYMENT All charges shall be in accordance with the Budget Summary presented in Section III of this proposal. Invoices shall be submitted on a monthly basis, which clearly describe the specific services and tasks performed during the billing period. Each invoice is due and payable within 30 days of receipt and shall be considered delinquent on the 318t day. V. PROJECT MANAGEMENT AND PERSONNEL Keeton K. Kreitzer, Principal of Keeton Kreitzer Consulting, will serve as Project Manager for the scope of work presented in this proposal for environmental consulting services. Mr. Kreitzer has over 30 years of environmental planning experience and has served as project manager for several similar projects. He has been personally responsible for the preparation of over 100 environmental documents required pursuant to the California Environmental Quality Act and has also prepared environmental studies mandated under the National Environmental Policy Act. He has recently reestablished his own environmental consulting firm (Keeton Kreitzer Consulting) in order to provide public and private sector clients with high level, personalized environmental consulting services, including the preparation of environmental documents pursuant to CEQA and NEPA. He is currently managing the preparation of several environmental documents, including those for the Newport Banning Ranch Local Coastal Program in the County of Orange, West Coyote Hills in the City of Fullerton, the Emery Ranch residential development plans in the Cities of La Mirada and Fullerton, and for the Central City Redevelopment Project Area in the City of Bell Gardens. Mr. Kreitzer's resume has been included with this scope of work. VII. RESPONSIBILITY OF THE PROJECT APPLICANT AND /OR CITY OF NEWPORT BEACH The following information shall be provided to KKC by the project Applicant andlor the City of Newport Beach in order to complete the analysis described in this proposal. 1. A complete description of the proposed 5 -lot subdivision project, including an inventory of the uses that previously exist on the subject property and the proposed development program parameters. 2. Exhibits illustrating the existing site development. 3. Site Plan and Engineering Plans and Specifications (as determined necessary by the City of Newport Beach). 4. All environmental documents prepared for the proposed project, including but not limited lo: Phase I and II Assessments, hydrology and water quality assessments, soils and geology, biological assessment (including supplement biological analysis that may be necessary), traffic studies, etc., that have been prepared for the proposed project. 5. Existing topographic map (if available). 6. Aerial photograph (if available). Proposal for Environmental Consulting Services Tentative Tract Map 17355 and PC Development Plan Amendment March 23, 2010 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES TENTATIVE TRACT MAP 17355 AND PC DEVELOPMENT PLAN AMENDMENT All other pertinent information related to the proposed project. 8. Harbor Hills Planned Community PC Text and Development Plan. 9. City of Newport Beach General Plan. VIII. STATEMENT OF OFFERITERMS OF AGREEMENT KKC is prepared to begin work on this project immediately upon execution of the contract. You may be assured that should we be selected to provide the environmental services described in this proposal, we shall devote our full resources to the project and will approach it with the highest degree of enthusiasm, objectivity, and professionalism. KKC will perform all work described in this proposal for a budget of $18,710.25. This offer is valid for a period of sixty (60) days. It should be emphasized that these costs are based upon our assumptions made on the scope of the project. Should the scope change significantly, necessitating a change to the work program, we will contact you immediately and amend both the scope of services and budget accordingly. Offer Presented By: c Keeton K. Kreitzer, Principal KEETON KREITZER CONSUL N Date: March 23, 2010 Proposal for Environmental Consulting Services Tentative Tract Map 17355 and PC Development Plan Amendment March 23, 2010 WORKERS' COMPENSATIONDECLARATION I Keeton K Kreitzer hereby affirm under penalty of perjury, the (NemdTiiie) following declaration: I certify on behalf of Keeton Kreitzer Consulting that during the term of my (orgmizaflm Name) contract with the City of Newport Beach, I will not employ any person in any manner so as to become subject to the workers' compensation laws of California, and agree that if I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions. DATE: August 7. 2008 LE Nam Title Telephone: (714) 665 -8509 WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000). IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES. ACORD ,v CERTIFICATE OF LIABILITY INSURANCE D ata 6MO "R) PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION HEFFERNAN PROFESSIONAL PRACTICES HEFFEe Number: PROFESSIONAL Lice se W. Numb Avenue, Suite 26fi 1866 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. E%P DATE MLLO UNITS Orange, CA 82867 "IPPISSE"TAS"Mw INSURERS AFFORDING COVERAGE NAIC 4 INSURED INSURERA: I Travelers P(operty Casuatty Co. 36161 INSURERB: ContlnentalCasuall Co. 20443 KEETON KREITZER CONSULTING INSURER C: PERSOHALSADVINJURY 17291 IRVINE BLVD. STE. 305 TUSTIN, CA 92780 INSURER D: GENII AGGREGATE INSURER I-' GENLAOGREOATE LBJRAPiRUEb PER X D - POUCY x JF.CT LOG PRODUCTS - CCLIPIDPAGO COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HERE04IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND OOHDITIOHS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR L NRD IpE R City of Newport Beach CATS QUIRIDNIn E%P DATE MLLO UNITS A "IPPISSE"TAS"Mw GENERALIJAMEN•Y X COMNERCULGENERAL UBftm CLAIMS MADE J( OCCUR 68048791-211 09/01/09 09/01/10 EACHOCCURRENCE $1,000,000 DAMAGE To RENTED PREN S� $i,000,00D MEDEXP{MTYONEPERSOIO $10,000 PERSOHALSADVINJURY $1,000,000 GENII AGGREGATE $2,000,600 GENLAOGREOATE LBJRAPiRUEb PER X D - POUCY x JF.CT LOG PRODUCTS - CCLIPIDPAGO $2.000,000 A MOBTLE VAEIUT'( ANY AVTO ALLANNEDAUTOS SCHEDREDAUfOS HIRED AVTOS NO".OMEDAVTOS 88048791-211 09/01/09 09/01/10 00MSEJEDSINGLE1.40In tEII s VVD SINCL IN GL BODILY INJURY a+xPNTmJ $ J( BWILY INJURY P"EddoD g. J( PROPERTY DAIMGE U'VAWENq $ GAItATULUUMUTY ANY AUTO WA AILTOONLY -EA ACCgENT S OTHER nM EAACC aUTOON.r. nau $ $ MESSNNBROAA LUHRRY OCCUR ❑ CWMSMAOE DEDUCTI I.S RETENTION $0 WA EACHOCCURRENCE S AGGREWE $ $ S $ SCOMPENSAnONAND EMplOYERS'LUNUIY ANYPROPIETOMMTNERIFJWECUTIVE OFFICEMENSERMIJI0EDN H Yy.0eTn50Rgder SPEGA LMOM WV. NIA NCSTAN TORY • W' ELEACHACCIDEW $ EL dSPASE POLICY LNR $ EL DISEASE -EA ELWWYEE $ B OMER PROFEss"ONM. L""YY EEA264020947 08/08/09 05/06/10 PERM $1,000,000 AGGREpATE $1,000,000 DESORIPnO OPERATIM&LOCATI NWVEtirA EXCAONSADOEDBYEN RSEMFNTISP LPROVISIONB Projects as on file with the insured. The City of Newport Beach Its officers officials employees & volunteers are named as additional insureds on general liability policy -see attached endorsement. CERTIFICATE HOLDER CANCELLATION 'Ten Day Notice for Non-Painvient of Premium ACORD 26 (2001108) OACORD CORPORATION 1988 SHOULD E IUBEDPWgES BE LLED FORE iNE E71P1 nON DATE THEREOF, THE ISSUING INSURERVYLLLMNDEAVBR -TG MAIL10-1 DAYS W WT1EN City of Newport Beach NOTICE TOTNE CERTIFICATE HOLDER NAMED TOTHELEFT ,SIVFAILUFI& DieiNAk Attn: Jamie Murillo 3300 Newport Beach Blvd. "IPPISSE"TAS"Mw AUTHORIZED REPRESENTATIVE P.O. Box 1766 Newport Beach, CA 92658 AV-\- ACORD 26 (2001108) OACORD CORPORATION 1988 POLICY NO.: 88048791-211 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. The following is added to WHO IS AN INSURED (Section 11): Any person or organization that you agree In a "contract or agreement requiring Insurance" to include as an additional Insured on this Coverage Part, but only with respect to liability for "bodily injury", "property damage" or "personal fnjury" caused, In whole or in pad, by your acts or omissions or the acts or omissions of those acting on your behalf. a. In the performance of your ongoing operations; b. In connection with premises owned by or rented to you; or C, In connection with "your work' and included within the "products - completed operations hazard ". Such person or organization does not quality as an additional insured for "bodily injury', 'properly damage" or "personal injury" for which that person or organization has assumed liability In a contract or agreement. The Insurance provided to such additional insured Is limited as follows: d. This Insurance does not apply on any basis to any person or organization for which coverage as an additional Insured specifically Is added by another endorsement to this Coverage Part, B. The following is added to Paragraph a. of 4. Other insurance in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): However, if you specifically agree in a "contract or agreement requiring Insurance" that the insurance provided to an additional Insured under this Coverage Part must apply on a primary basis, or a primary and non- contributory basis, this Insurance is primary to other Insurance that is available to such additional Insured which covers such additional insured as a named insured, and we Will not share with the other Insurance, provided that: (1) The 'bodily injury" or "properly damage" for which coverage is sought occurs; and (2) The "personal Injury" for which coverage Is sought arises out of an offense committed; after you have entered Into that "contract or agreement requiring Insurance". But this Insurance still is excess over valid and collectible other Insurance, whether primary, excess, contingent or on any other basis, that Is available to the Insured when the insured is an additional insured under any other Insurance. C. The following is added to Paragraph 8. e. This insurance does not apply to the Transfer Of Rights Of Recovery Against rendering of or failure to render any Others To Us in COMMERCIAL GENERAL "professional services", LIABILITY CONDITIONS (Section IV): f. The limits of insurance afforded to the We waive any rights of recovery we may have additional Insured shall be the limits against any person or organization because of which you agreed in that "contract or payments we make for "bodily injury", agreement requiring Insurance" to "properly damage' or "personal injury" arising provide for that additional Insured, or the out of your work" performed by you, or on limits shown In the Declarations for this your behalf, under a "contract or agreement Coverage Part, whichever are less. This requiring insurance" with that person or endorsement does not Increase the limits organization. We waive these rights only of Insurance stated In the LIMITS OF where you have agreed to do so as part of the INSURANCE (Section III) for this "contract or agreement requiring Insurance" Coverage Part. with such person or organization entered Into CO DS 8109 01 020D7 The Travelers Companies. Inc. Page 1 of 2 Includes copyrighted material of Insurance Services Office, Inc., with is permission. by you before, and in effect when, the "bodily Injury' or "property damage" occurs, or the "personal Injury" offense is committed. D. The following definition Is added to DEFINITIONS (Section V): "Contract or agreement requiring Insurance" means that part of any contract or agreement under which you are required to Include a person or organization as an additional insured on this coverage Part, provided that the "bodily injury" and "property damage" occurs, occurs, and the "personal injury' is caused by an offense committed: a. After you have entered Into that contract or agreement; b. White that part of the contract or agreement is in effect; and c. Before the end of the policy period CO D3 81 09 07 ® 2007 The Travelers Companies, Inc. Page 2 of 2 Includes copyrighted materiel of Insurance Services Office, Inc,, with Its permission.