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HomeMy WebLinkAboutC-4527 - PSA for Biological, Cultural and Paleontological Monitoring of Newport Beach Civi Center and Park Development ProjectAMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT WITH LSA ASSOCIATES, INC. FOR BIOLOGICAL, CULTURAL & PALEONTOLOGICAL MONITORING OF NEWPORT BEACH CIVIC CENTER & PARK DEVELOPMENT PROJECT THIS AMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Three"), is entered into as of this day of ftj/-j'j, 2012, by and between the CITY OF NEWPORT BEACH, a California u icipal Corporation ("City"), and LSA ASSOCIATES, INC. a California Corporation whose address is 20 Executive Park, Suite 200, Irvine, California 92014 ("Consultant"), and is made with reference to the following: A. On April 27, 2010, City and Consultant entered into a Professional Services Agreement ("Agreement") for biological, cultural and paleontological monitoring services for the new City Civic Center and Park Development ("Project"). B. On January 5, 2011, City and Consultant entered into Amendment No. One to the Agreement to extend the term of the Agreement and update insurance requirements ("Amendment No. One"). C. On November 14, 2011, City and Consultant entered into Amendment No. Two to the Agreement to increase the Scope of Work and to increase the total compensation ("Amendment No. Two"). D. City desires to enter into this Amendment No. Three to reflect additional services not included in the Agreement or prior Amendments and to increase the total compensation. E. City and Consultant mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Section 2 of the Agreement, as amended, shall be supplemented to include the Scope of Services dated February 7, 2012, which is attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 2. COMPENSATION The introductory paragraph to Section 4 of the Agreement as amended shall be amended in its entirety and replaced with the following: City shall pay Consultant for the services on a time and expense not -to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the Agreement. Consultant's total amended compensation for all work performed in accordance with this Agreement and all prior amendments, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Fifty -Two Thousand, Nine Hundred Sixty Dollars and no/100 ($152,960.00) without prior written authorization from City ("Total Amended Compensation"). No billing rate changes shall be made during the term of this Agreement without the prior written approval of the City. 2.1 The Total Amended Compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. Three and the supplemental Scope of Services attached as Exhibit A, including all reimbursable items and subconsultant fees, in an amount not to exceed Thirty -Five Thousand, Eight Hundred Dollars and no/100 ($35,800.00), without prior written authorization from City. 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] LSA ASSOCIATES, INC. Page 2 IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. THREE on the dates written below. APPROVED AS TO FORM: CITY ATTORN_ Y'S OFFICE Date: `" - Aaron C. Harp 110� City Attorney ATTEST: Date: / y By: AaW4�- N -�' Leilani I. Brown City Clerk Attachment CITY OF NEWPORT BEACH, A Californiamunicipal corporation Date: c)Z -z-- CONSULTANT: LSA ASSOCIATES, INC., a Californ'a orporation Date: Sn By: Robert H. McCann President Date: By. Jam �� aum Chi f Financial Officer [END OF SIGNATURES] Exhibit A — Additional Services to be Performed LSA ASSOCIATES, INC. Page 3 EXHIBIT A LSA February 7, 2012 RIVERSIDE LSA ASSOCIATES, INC. BERKELEY FRESNO ROCKLIN 20 EXECUTIVE PARK, SUITE 200 949.553.0666 TEL CARLSBAD PALM SPRINGS SAN LUIS OBISPO IRVINE, CALIFORNIA 92614 949.553.8076 FAX FORT COLLINS POINT RICHMOND SOUTH SAN FRANCISCO Subject: Budget Adjustment for Biological, Archaeological, Paleontological, and Water Quality Services (LSA Job No. CNB 1003), City of Newport Beach Civic Center and Park Development Project, Newport Beach, Orange County, California Per our discussions through email (November 29, 2011) and most recently over the phone, LSA Associates Inc. (LSA) is requesting a budget amendment (No. 3) as a time and materials (T&M) not -to -exceed amount of $35,800. Due to the requested level of site monitoring, LSA has expended its combined budget in an effort to meet the needs of the project. This amendment to the contract will be utilized to continue providing monitoring services as needed, complete the monitoring for removal of invasive species/advise on revegetation protocols within the jurisdictional drainages, complete final archaeological and paleontological reports, and continue to provide water quality testing. Amendment No. 3 Request Task Breakdown • Additional, as needed, Biological and Archaeological, Paleontology Inspection. ($26,400). • Monitor the removal of Exotic Vegetation from Delineated Drainages. This amount will recover budget used for requested Biological/Archaeological monitoring and coordination ($4,800). • Final Reports for Archaeology and Paleontology. This amount will recover budget used for requested Biological/Archaeological monitoring and coordination ($4,600). Total Request, Amendment No. 3: $35,800 Sincerely, ;LSA CIATES, INC. :1, le Field Director, Archaeology/Paleontology Group C:\Documents and Settings\ftse\Local SettingsUemporary Internet Files\Content.Outlook\G9ROU3CE\Augment Letter 2 7 12.doc 0/1/12» PLANNING I ENVIRONMENTAL SCIENCES I DESIGN E i ��.-� I�� will � I _��:. [ � _••��; �- - Agenda Item No. 8 April 10, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Stephen G. Badum, Public Works Director 949 -644 -3311, sbadumCa�newportbeachca cov PREPARED BY: Fong Tse, Principal Civil Engineer APPROVED: D. TITLE: Newport Beach Civic Center and Park Project — Approval of Amendment No. 3 to Professional Services Agreement with LSA Associates, Inc. for Biological, Cultural, and Paleontological Monitoring Services ABSTRACT: Biological, Cultural, Archaeological, Paleontological, and Water Quality monitoring services are required to ensure compliance with the conditions placed on the Newport Beach Civic Center & Park Project (Project). The approval of professional services agreement amendment No. 3 with LSA Associates, Inc. is needed to ascertain the remaining construction activities satisfy the requirements of the Project Documents. RECOMMENDATION: Approve Professional Services Agreement Amendment No. 3 with LSA Associates, Inc., of Irvine California for Biological, Cultural, Archaeological, Paleontological, and Water Quality Monitoring Services at a not -to- exceed price of $35,800.00 and authorize the Mayor and the City Clerk to execute the Amendment. FUNDING REQUIREMENTS: Sufficient funds are available in the current CIP project budget (7410- C1002009) for the additional services. Newport Beach Civic Center and Park Project— Approval of Amendment No. 3 to Professional Services Agreement with LSA Associates, Inc. for Biological, Cultural, and Paleontological Monitoring Services April 10, 2012 Page 2 The proposed -6seof the funding balance is as follows: Vendor Purpose Amount LSA Associates, Inc. Biological, Cultural, Archaeological, Paleontological, and Water Quality Monitoring Services $ 35,800.00 DISCUSSION: The City entered into a professional services agreement (PSA) in April 2010 with LSA Associates, Inc. (LSA) for a $108,160 contract amount to begin monitoring work with a scope of work based on the requirements of the project documents and outside agencies known at that time. Since then, two PSA amendments were executed to extend the Agreement term, to update the insurance requirements, and to include tasks that were not listed under the original scope of work and increased the overall fees by $9,000.00. The project program manager, CW Driver, has been diligent in keeping the monitoring costs to a minimum, however, the reconstructive site work triggered by the Winter 2011 heavy storms required unscheduled monitoring that was not in the project scope. The implementation of the California State Water Resources Control Board's statewide projects update increased the Project's risk level to a "2 ". The risk level "2" designation imposed more frequent and more detailed monitoring on the Project than originally planned. These unforeseen events increased the amount of work needed to be completed by LSA. Accordingly, LSA submitted the attached budget amendment request to cover the additional work. Staff reviewed these proposed additional services with CW Driver, the project program manager, and found them to be consistent with the actual field conditions since construction began. When approved, a summary of LSA's PSA is as follows: Agreement Scope Amount Original Biological, Cultural, and Paleontological Monitoring $108.160.00 Amendment 1 Update PSA Term and Insurance Requirements $ 0.00 Amendment 2 Additional Tasks Due To Changed Field Conditions $ 9,000.00 Amendment 3 Additional Tasks Due To Winter 2011 Storms Damage and State Imposed Risk Level Increase $ 35,800.00 Total $152,960.00 Newport Beach Civic Center and Park Project — Approval of Amendment No. 3 to Professional Services Agreement with LSA Associates, Inc. for Biological, Cultural, and Paleontological Monitoring Services April 10, 2012 Page 3 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQX) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (Architectural and Engineering services is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: 6 ephe Ba um Public Works Director Attachments: A. Amendment No. 3 to Professional Services Agreement B. LSA Additional Services Request Letter Dated February 7, 2012 „� � �� � 1 -- ,,, � i , , , � � �., r � ;�. rP��l Dolla[s and 3.! INTEGRATED CO 'ci N E: 1H, IA_ Y_e IL 10 I jl.l jr 'l It 1 J�l Tj le, Y4 -p _vwt),c N E: 1H, IL N E: 1H, I quest Task Breakdown 117:111F IF 11 WE, L I SA ASSTIVEP S, ,S BERKELEY FRESNO RIVERSIDE 20 EXECUTIVE PARK, SUITE 200 949.553.0666 TEL CARLSBAD PALM SPRINGS SAN LOS OBISPO IRVINE, CALIFORNIA 92614 949.553.8076 FAX FORT COLLINS POINT RICHMOND SOUTH SAN FRANCISCO February 7, 2012 Mr. William Hahn C.W. Driver 1100 Avocado Avenue Newport Beach, CA 92660 Subject: Budget Adjustment for Biological, Archaeological, Paleontological, and Water Quality Services (LSA Job No. CNB1003), City of Newport Beach Civic Center and Park Development Project, Newport Beach, Orange County, California Dear Mr. Hahn: Per our discussions through email (November 29, 2011) and most recently over the phone, LSA Associates Inc. (LSA) is requesting a budget amendment (No. 3) as a time and materials (T &M) not -to- exceed amount of $35,800. Due to the requested level of site monitoring, LSA has expended its combined budget in an effort to meet the needs of the project. This amendment to the contract will be utilized to continue providing monitoring services as needed; complete the monitoring for removal of invasive species /advise on revegetation protocols within the jurisdictional drainages, complete final archaeological and paleontological reports, and continue to provide water quality testing. Attached is the January 2012 monthly summary, which describes the most current budget status. Thank you for your consideration of this request. Amendment No. 3 Request Task Breakdown '.'.: Additional, as needed, Biological and Archaeological, Paleontology Inspection. ($26,400). Monitor the removal of Exotic Vegetation from Delineated Drainages. This amount will recover budget used for requested Biological /Archaeological monitoring and coordination ($4,800). ;: Final Reports for Archaeology and Paleontology. This amount will recover budget used for requested Biological/Archaeological monitoring and coordination ($4,600). Total Request, Amendment No. 3. $35,800 Sincerely, Group C:\Docummts and Settlll9s\rt9eTocal Settmgs\TempB,a Iuternet Piles \Cent"" outlook \G9ROUXOAugmeut Letter 2 7 12.doc 0/1/12» PLANNING I ENVIRONMENTAL SCIENCES I DESIGN AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT WITH LSA ASSOCIATES, INC. FOR BIOLOGICAL, CULTURAL & PALEONTOLOGICAL MONITORING OF NEWPORT BEACH CIVIC CENTER & PARK DEVELOPMENT PROJECT THIS AMENDMENT NO. TWO TO PROFESSIONAL SE VICES AGREEMENT ("Amendment No. Two"), is entered into as of this JL" day of O , 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ("City"), and LSA ASSOCIATES, INC., a California Corporation whose address is 20 Executive Park, Suite 200, Irvine, California 92614 ("Consultant"), and is made with reference to the following: RECITALS: A. On April 27, 2010, City and Consultant entered into a Professional Services Agreement ("Agreement") for biological, cultural and paleontological monitoring services for the new City Civic Center and Park Development ("Project"). B. On January 5, 2011, City and Consultant entered into Amendment No. One to the Agreement to extend the term of the Agreement and update insurance requirements ("Amendment No. One"). C. City desires to enter into this Amendment No. Two to reflect additional services not included in the Agreement or prior Amendment and to increase the total compensation. D. City and Consultant mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Section 2 of the Agreement, as amended shall be supplemented to include the Scope of Services which is attached hereto as Exhibit `A' and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 2. COMPENSATION Exhibit B to the Agreement shall be replaced with the Schedule of Billing Rates attached hereto as Exhibit B, and incorporated herein by reference. The introductory paragraph to Section 4 of the Agreement as amended shall be amended in its entirety and replaced with the following: City shall pay Consultant for the services on a time and expense not -to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the Agreement. Consultant's total amended compensation for all work performed in accordance with this Agreement and all prior amendments, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Seventeen Thousand, One Hundred Sixty Dollars and no/100 ($117,160.00) without prior written authorization from City ("Total Amended Compensation"). No billing rate changes shall be made during the term of this Agreement without the prior written approval of the City. 3.1 The Total Amended Compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. Two, including all reimbursable items and subconsultant fees, in an amount not to exceed Nine Thousand Dollars and no/100 ($9,000.00), without prior written authorization from City. 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Two on the dates written below. APPROVED AS TO FORM: OFFICE �OF THE CITY ATTORNEY Date: By. Leonie Mulvihill Assistant City Attorney ATTEST: �(� Date: `` By: Leilani . E City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: Dave�Ki City Manager CONSULTANT: LSA ASSOCIATES, INC., a California Corporation Date: By: Robert H. McCann, President Date: 1,)13111 By: Jam ' aum, Chi inancialOfficer Attachments: Exhibit A — Additional Services to be Performed Exhibit B — Schedule of Billing Rates EXHIBIT A *NNIVI;RS A-2011 1976 L S A 2011 October 6, 2011 R[OVE11S1Dli LSA ASSOCIA7'lls. INC. HARKCLCY 12RI:SNO RCKLIN 20 CXRCUTIVE PARK. SUITE 200 949.553.0666 TEA. CARLSDAD PALM SPRINGS SAN LUIS ODISI'O IRVINE:. CALIFORNIA 92614 949.553.8076 FAX FORT COLLINS POINT RICHMOND SOUTH SAN FRANCISCO Tania Moore City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Scope of Work Water Quality Monitoring Services LSA's task -specific scope of work for water quality monitoring services associated with construction of the Newport Beach City Hall and Park are detailed below: Tasks: Turbidity and pH sampling: • Conduct stormwater sampling according to the requirements of the Construction General Permit (Order No, 2009-0009-DWQ) for the duration of project construction. • Conduct stormwater sampling in accordance with the Rain Event Action Plans (REAPS), which would be prepared by the project Qualified SWPPP Practitioner (QSP) and would be provided to LSA prior to future rain events. • Collect a minimum of 3 effluent samples during qualifying rain events (defined as 0,5 inch or more of rainfall) during typical operating hours. • Collect samples from off-site run-on and at all effluent discharge points from the site. • Analyze samples on-site for pH and turbidity using field instruments. • Provide the sampling results to the project QSP on the same day that samples are collected. • LSA's unit cost for conducting the stormwater sampling work described above would not exceed $450 per day of sample collection and would include labor and reimbursable costs (i.e., mileage). Non-visible pollutant sampling: • Stormwater sampling for non-visible pollutants only required during any breach, malfunction, leakage, or spill (potentially resulting in the discharge of pollutants to surface waters) observed during a visual inspection. • Visual inspections of the site are required weekly as well as 48 hours prior to and 48 hours after a qualifying rain event. The project QSP will conduct these visual inspections and would then contact LSA in the event that such a breach, malfunction, leakage, or spill is observed during any of these visual inspections. PACN131003Mater QualityM WQ san)pliug proposal FINAL.doe i.sA AARSocI:11Ea. INC. • If a breach, malfunction, leakage, or spill is reported, collect samples for non-visible pollutants during the subsequent storm event and deliver them to TestAmerica's Irvine laboratory for analysis. • Costs associated with the laboratory analysis would vary depending upon the constituents sampled. Costs typically range from $50 to $150 per constituent and are not included in LSA's costs. • LSA's unit cost to collect samples for non-visible pollutants, to deliver them to the laboratory, and to coordinate with the laboratory would not exceed $375 per sampling event. All work will be conducted in accordance with the attached Schedule of Standard Contract Provisions and Billing Rates. If you have any questions, please contact Nicole West at (949) 553-0666. Sincerely, SA ASSOCIATES, INC. Frank Has ton Principal b ` Nicole West Senior Environmental Specialist Attachment: Schedule of Standard Contract Provisions and Billing Rates EXHIBIT B SA CD . O C� • 0N w¢�vgicn t� �rn YO G.��j•A O'J1 .� N U ��� � 4 �' P OAS .,,� O O O rO i.j ((Q OQ {{S.61 •� .lN 14 42 0 O p p m O w¢3wxm"i�v,a`'¢�m°wx D UAC A N 0 O J,)4 U U a• H NA ui¢�,z c O M w N w a d w 0 N 0 Y M b a b W Qv, 41. pj id N iYi O O •O '�+ •� .5 I 'O M F N $ An 10, � LSA ASSOCIATES, INC. LSA IN-HOUSE DIRECT EXPENSES AUGUST 2011 LACORMontract.doc «09/20/11» Unit Cost Re)roduction (8.5 x 11) B/W $.07 per page Reproduction (8.5 x 11) Color $.40 per page Reproduction (11 x 17) B/W $.10 er age Reproduction (11 x 17) Color $.75 per page CD Production $5.00 per CD Plotting $3.75 per sf Mileage On Road $.555 per anile Mileage Off -Road $.705 per mile GPS Unit $75.00 per da Total Station Surveying Instrument $50.00 per day Level Laser or Optical) . $25.00 per day Laser Rangefinder $25.00 per day Sound Meter $75.00 per da Aerial Photo Cost Boat Rental $50.00/day Water Quality Meter $25.00/day LACORMontract.doc «09/20/11» J �r AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH LSA ASSOCIATES, INC. FOR BIOLOGICAL, CULTURAL & PALEONTOLOGICAL MONITORING OF NEWPORT BEACH CIVIC CENTER & PARK DEVELOPMENT PROJECT THIS AMENDMENT NO. ONE TO PROFESSIONAL SER CES AGREEMENT ( "Amendment No. One "), is entered into as of this �iday of GiVIILGt , 2- 01-0,:�o by and between the CITY OF NEWPORT BEACH, a California Municipal- Corporation ( "City "), and LSA ASSOCIATES, INC., a California Corporation whose address is 20 Executive Park, Suite 200 Irvine, California 92614 ( "Consultant "), and is made with reference to the following: RECITALS: A. On April 27, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for biological, cultural and paleontological monitoring services for the new City Civic Center and Park Development ( "Project "). B. City desires to enter into this Amendment No. One to extend the term of the Agreement to December 31, 2012, and update insurance requirements. C. City and Consultant mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement shall be amended in its entirety and replaced with the following: The term of the Agreement shall terminate on December 31, 2012, unless terminated earlier as provided for in Agreement. 2. INSURANCE Section 14 of the Agreement shall be amended in its entirety and replaced with the following: 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. C. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant'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 (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 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, blanket contractual liability. 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 $1,000,000 combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. 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. 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. on the dates written below. APPROVED AS TO FORM: OFFICF OF C4TY ATTORNEY Date: B Leonie Mulvihill / Assistant City Attorney ATTEST: Date: ���J'Il By_ k Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: //4f / //i Badum, Public Works Director CONSULTANT: LSA ASSOCIATES, INC., a California Corporation Date: !z By: Robert H. McCann President Date: /'/ :'40 By: J�am'es-B um Chief Financial Officer 4 C- �L5a7 PROFESSIONAL SERVICES AGREEMENT WITH LSA ASSOCIATES, INC. FOR BIOLOGICAL, CULTURAL & PALEONTOLOGICAL MONITORING OF NEWPORT BEACH CIVIC CENTER & PARK DEVELOPMENT PROJECT THIS AGREEMENT is made and entered into as of this oZ!77tda Y of r, f, 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and LSA ASSOCIATES, INC., a California Corporation whose address is 20 Executive Park, Suite 200, Irvine, California, 92614 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to design and construct a new City Civic Center and Park Development Project. C. City desires to engage Consultant to provide biological, cultural and paleontological monitoring services for the new City Civic Center and Park Development Project ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Lloyd Sample. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31st day of December, 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other 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 One Hundred Eight Thousand, One Hundred Sixty Dollars and no /100 ($108,160.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 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 NICOLE DUBOIS 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 Public Works Department. STEVE BADUM shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized 3 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. 51 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. 5 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 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 9 employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 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 party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any work 0 performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and 0 invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. iX 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: With a copy to: Attn: Steve Badum, Director Public Works Department City of Newport Beach PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3311 Fax: 949 - 644 -3308 Attn: William Hahn C.W. Driver, Inc. 15615 Alton Parkway, Ste. 150 Irvine, CA 92618 Phone: 949 -261 -5100 Fax: 949 - 261 -5167 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Lloyd Sample LSA Associates, Inc. 20 Executive Park, Suite 200 Irvine, CA 92614 Phone: (949) 553 -0666 Fax: (949) 553 -8076 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. 11 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 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. IPA 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. 13 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 OFI THEI CITY ATTORNEY: By / Leo ie Mulvihill,�� Assistant City Attorney 4 ATTEST: By: Leilani I. Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By:�Keith . Curry Mayor LSA ASSOCI TES, INC.: By: / Robert H. McCann, President By: 4a446sdEraium, Chief Financial Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates in EXHIBIT A L A LSE ASSO IACTES. INC. 10 EXEC NT A PARK. SIIITE 900 90'J.159.0466 'I'F 1. �\ IRVINE. CALIFORNIA 99614 9n9.559J014 FAX April 1, 2010 Mr. Jaime Murillo, Associate Planner City of Newport Beach Planning Department 3300 Newport Boulevard Newport Beach, CA 92658 -8915 RIYERSIIIF. 1 t'...KLEY FRESNO R111:K1 -IN CARISBAU PALM SPRINGS SAN LIIIS CRISP" PORT CVLLINS POINT RICIIMON11 SUIP -1.11 SAN FRANCISCO Subject: Proposal for Biological, Cultural, and Paleontological Monitoring Dear Mr. Murillo: LSA Associates, Inc. (LSA) is pleased to submit this proposal to provide Biological and Cultural Monitoring Services for the recently approved City Hall and Park Development Plan Project (Civic Center Project). This proposal is based on our understanding of the project, the certified Environmental Impact Report (EIR), familiarity with the project site based on site surveys and previous monitoring, and conversations with you. LSA looks forward to the opportunity to provide Biological and Cultural Monitoring Services to the City of Newport Beach (City) and to further its work experience with the City. Nicole Dubois will be the Project Manager for this work effort, and Mona DeLeon will be the Principal in Charge. Jim Harrison will be the Task Manager for all Biological Monitoring Services, and Lloyd Sample will be the Task Manager for all Cultural (Archaeological and Paleontological) Monitoring Services. Based on the schedule provided by C.W. Driver and the City, the current grading for the project is anticipated to take 5 months (May through September 2010). For this proposal, construction has been estimated to occur over 110 days (5 months at 22 working days per month). For cost containment, monitors used for the project will be trained to monitor for both cultural and paleontological resources. In addition, where feasible, the cultural /paleontological monitors will be trained to conduct biological observation. LSA can assure the City that it will respond to any relevant issues or concerns that may arise and will present options consistent with your goals and priorities for the project. Thank you in advance for your consideration of this proposal. Although every effort has been made to anticipate your needs, LSA welcomes the opportunity to discuss strategy and this scope of work. If you have any questions, please contact either Lloyd Sample or Steve Conkling at (949) 553 -0666. Sincerely, LSA ASSOfIATES,�yf.1 -Ilk X,5k Steve C�nrdcting - ample P rincrpa�( Project Manager 04'01.10141: NicoleDlFiles.Propos8l Docmnenls,CNB Proposal for Moniloring.doco 1'I.ANNINf. I I.NYIRONMEN -1 AI. SI:II`.NCI:S I III:SICN LSA ASSOCIATES. INC. PROPOSAL FOR BIOLOGICAL AND CULTURAL MONI'PORINC SERVICES APRIL 2010 CITY HALL AND PARK DEVELOPMENT PLAN PROJECT INTRODUCTION LSA's Natural Resources staff is known for outstanding expertise in the evaluation, management, and restoration of biological resources. The staff of scientists prepares biological resource inventories, constraints analyses, and impact assessments. LSA's extensive experience in wetlands analysis, special - status species evaluation, and environmental permitting is respected by both clients and regulatory agency staff. LSA designs habitat restoration plans and mitigation banks, implements and monitors revegetation programs, and facilitates successful completion of permitting assignments. The extensive use of geographic information system (GIS) and global positioning system (GPS) software and data has become a regular part of LSA's work. LSA's Natural Resources staff is the single largest technical discipline within LSA, with 35 professional staff members in four Southern California offices. With over 70 biologists statewide, LSA can always consult internally with someone who has dealt with and overcome similar complex issues. LSA has managed and monitored numerous habitat restoration and habitat creation projects until being released from further obligations by the resource agencies, including the United States Army Corps of Engineers (Corps), California Department of Fish and Game (CDFG), and the United States Fish and Wildlife Service ( USFWS). LSA has experience with habitat restoration and mitigation sites ranging in area from less than 1 acre to several hundred acres. The projects address habitat types ranging from desert scrub to coastal wetlands. The professional staff has a broad base of hands -on experience to effectively address and correct problems encountered during implementation. LSA's Cultural Resources staff provides field surveys, testing, laboratory services, resource evaluation, historical assessments, and monitoring expertise. PROPOSAL Task 1: Preconstruction Meeting This task provides for a preconstruction meeting between the City, the City's Construction Contractor, and LSA's biological and cultural /paleontological monitors. This meeting is expected to occur on site and is not expected to last more than 3 hours including travel time. The propose of the meeting is for LSA's monitors to review and discuss the construction monitoring schedule and requirements with the City and the City's construction contractors, so as to be in compliance with the conditions specified in the Final EIR (FEIR). Task 2: Conduct Preconshvction Bird Surveys In the event that project construction or grading activities are scheduled to occur within the active breeding season for birds (i.e., February 15— August 31), a nesting bird survey will be conducted by a qualified and experienced LSA biologist within 7 days of the commencement of scheduled clearing and grubbing of vegetation or other activities involving disturbance of native (e.g., coastal sage scrub [CSS]) habitat on site. Concurrently, the LSA biologist will also locate any California gnatcatchers and /or cactus wrens that may occur within 100 feet (ft) of the designated construction area. This proposal assumes no more than one such survey. In addition, the City will notify the USFWS and H:,NicoleD \Files \Proposal DGcumenlsTNa Proposal for Moniloring.dw 44101 AN LEA ASSOCIATES, INC. PROPOSAL FOR BIOLOGICAL AND CULTURAL NONITORINO SERVICES APRIL EDID CITY HALL AND PARK DEVELOPMENT PLAN PROJECT CDFG at least 7 days prior to commencement of clearing and grubbing activities. If active nesting of birds is observed within 100 ft of the designated construction area prior to construction, LSA will determine the appropriate buffer distance based on the specific nesting bird species and circumstances involved, and the construction contractor will immediately demarcate the buffer perimeter around the active nest. If active nesting occurs, the LSA biologist will need to briefly revisit the site to definitively verify that the birds have fledged from the nest. Once this has been determined, the buffer may be removed by the construction contractor. LSA anticipates up to three separate site visits to verify the completion of nesting. The locations of any California gnatcatchers, cactus wrens, and/or active bird nests will be clearly mapped and provided to the City for inclusion on its construction/grading plans, and a brief memorandum or letter documenting the results of the preconstruction bird survey will also be provided to the City. Task 3: Biological Resources Monitoring An LSA biologist will monitor the installation of protective orange snow fence along the entire construction perimeter of the area to be preserved in place, including the jurisdictional drainages, primarily to ensure that the fence is installed at the appropriate location outside of the Corps and CDFG jurisdictional limits. Monitoring the fence installation is estimated to take no more than one work day (up to 9 hours including gavel time) to complete. The biological monitor will also be present during the clearing and grubbing of vegetation (particularly CSS) occurring within 300 ft of the orange snow fencing. The City has indicated a total of 10 working days to complete these clearing and grubbing activities. For purposes of this proposal and commensurate with the proposed budget, LSA assumes 8 hours of monitoring per work day and 1 additional hour of round trip travel time to and from the site per day. Following the clearing and grubbing activities, LSA will monitor grading work occurring within 300 ft of the orange snow fence. The Construction Contractor has estimated that there will be a total of 60 work days during which grading is likely to occur within 300 ft of the orange snow fence. LSA has allocated up to a total of 72 hours for an LSA biologist to visit the site periodically during those 60 days of grading to check on the condition of the area and coordinate with the contractor. When the LSA biologist is not present on site dining those 60 days, an LSA archaeologist /paleontologist, cross - trained in biology and made aware of the pertinent biological issues, will monitor grading within 300 ft of the fence; this monitoring is already included under the scope and budget for the proposed archaeological /paleontological monitoring work. Utilizing one monitor to cover both biological and archaeological /paleontological concerns, particularly when the clearing and grubbing is complete, will result in a significant cost savings of approximately $24,000 to the City. An LSA biological monitor will be present during removal of invasive exotic plants in the drainages within the area of preservation. This is expected to take one working day (up to 9 hours including travel time) to complete. The biological monitor will also be present during the installation of pedestrian footbridges and construction of trails /footpaths in the area of preservation. LSA has allocated up to two working days (up to 18 homy including travel time) for this monitoring work. H: NicolcMrilesProposal DOCUIncnlsrCNB Proposal I'or Moniloring.doc 4410IfIN LSA ASSOCIATES. INC. PROPOSAL FOR BIOLOGICAL AND CULTURAL MONITORING SERVICES AP R I L 2SIO CITY HALL AND PARK DEVELOPMENT PLAN PROJECT At the completion of all construction activities in the central parcel, the biological monitor will conduct a final inspection of the area prior to the removal of the orange snow fence. This site visit is not expected to last longer than 2 hours total, including travel time to and from the site. The biological monitor will, as necessary, maintain direct contact with the City representative throughout the construction process. Task 4: Review Final Landscape and Irrigation Plans A qualified LSA biologist will review the final landscape plans (including the proposed planting palette) and the irrigation plans to verify that the native habitat in the preserved area will not be adversely affected by the surrounding landscaping and irrigation activities. LSA has allocated up to 16 hours for this review. Brief documentation in the form of an email and/or marked -up copy of the plans will be provided to the City. Task 5: Cultural Resources Monitoring Cultural resources are typically contained in the tirst 6 ft of soil. Within the project area, only limited areas with a potential to contain cultural resources are present. LSA archaeologists will be present during ground - disturbing excavations to monitor for cultural resources. For budgetary purposes, LSA has assumed that 10 percent of total project grading (11 days) will be spent in clearing and grubbing of the type that might impact cultural resources. Consistent with Mitigation Measure 4.6.2 in the City's Final EIR for this project, LSA will follow monitoring and reporting procedures specified in the Archaeological Monitoring Plan (AMP) for the project. Task 6: Paleontological Resources Monitoring LSA paleontologists will be present during ground- disturbing excavations to monitor for fossil resources. Paleontological resources can be located throughout the area that is to be graded, regardless of the depth of grading, because the sediments are site are paleontologically sensitive sediments (i.e., Middle Pleistocene marine and terrestrial sediments as well as Middle Miocene Monterey Formation sediments). Paleontological monitors will be required for the remaining 99 days of project grading. Consistent with Mitigation Measure 4.6,4 in the City's Final EIR for this project, LSA will follow monitoring and reporting procedures specified in the Paleontological Resources Impact Mitigation Program (PRIMP) for the project. Task 7: Cultural and Paleontological Resources Monitoring Reports Since both cultural and paleontological resources may be present within the project area, and since monitors from both disciplines will be present during project construction, a report discussing the results of the monitoring efforts for each discipline will need to be prepared, consistent with the requirements of Mitigation Measures 4.6.2 and 4.6.4 in the City's certified Final EIR for this project. After completion of monitoring efforts, a Cultural Resources monitoring report, detailing the methods used and results obtained from monitoring, will be prepared following the standard guidance provided by the Office of Historic Preservation. Completion of this report and its submittal to the Regional Iti.NicoleD'.Files8roposaI DDCUIne1US.CNa Proposal IDr Monimring.doc 44i() I, On LEA ASSOCIATES. INC. PROPOSAL FOR BIOLOGICAL AND CULTURAL MONITORING SERVICES APRIL 2010 CITY HALL AND PARK DEVELOPMENT PLAN PROJECT Information Center signifies completion of Mitigation Measure 4.6.2. This proposal assumes that no cultural resources will be encountered during monitoring. If cultural resources are encountered, a budget amendment may be necessary to address the discovery. After completion of paleontological monitoring efforts, a report detailing the methods used and results obtained from monitoring will be prepared. Completion of this report and its submittal to the City signifies completion of Mitigation Measure 4.6.4. This proposal assumes that no fossils will be encountered during monitoring. If paleontological resources are encountered, a budget amendment Inay be necessary to address the discovery. Task 8: City Coordination and Project Management LSA will coordinate closely with and maintain regular communication with the Construction Contractor and City staff in order to complete the tasks as quickly and efficiently as possible and to allow City staff to remain informed as to the work currently being conducted by LSA and as to the associated work schedule. During intense or active periods of work, LSA will communicate periodically with City staff via telephone. Other than the preconstruction site meeting identified in Task 2 above, LSA does not anticipate the need to attend any meetings as part of the scope of work identified above. LSA specifies 10 hours for coordination regarding biological monitoring tasks, and 12 hours for coordination regarding cultural and paleontological monitoring tasks. BUDGET LSA proposes to accomplish Tasks 1 -8 as described above for an estimated fee of $108,160, as shown in Table A. The breakdown of this fee is roughly $21,100 for biological monitoring and $77,120 for cultural and paleontological monitoring. LSA fees are charged on an hourly basis, consistent with the Schedule of Standard Contract Provisions and Billing Rates, which is provided in Appendix A. This amount will not be exceeded without your authorization. LSA will aggressively identify strategies for reducing the overall work effort while maintaining the City's objectives and the legal adequacy of the work products. As you are aware, this proposal is based on the estimated hourly grading schedule provided by C.W. Driver. In the event actual grading activities exceed 110 days (5 months at 22 working days per month), or the number of hours of work per day exceeds 8 hours, LSA may seek a budget augment. Table A: Budget TASK BUDGET Task I: Preconstruclion Meeting $ 1 080 Task 2: Conduct Preconstroction Bird Surveys $4,500 Task 3: Biological Construction Monitoring 40 hours per week, 5 days /week, 10 days) $14,200 Task 4: Review Final Landscape and Irrigation Plans $2,400 Task 5: Cultural Resource Monitoring 40 hours per week, 5 days/week, I I days) $7,600 Task 6: Paleontological Resource Monitoring140 hours Ler week, 5 days/week, 99 days) $69,520 Task 7: Cultural and Paleontological Resources Monitoring Re orls $4,600 Task 8: City Coordination and Project Management $3,060 Reimbursable Bxpenses _ _ TOTAL __$1.,200 $108,160 Ih.Nicolen\F Il Oroposal DOcuNMIUs`,CND Proposal for Mooiioring.doc 44 /01 /IN EXHIBIT B LSA ASSOCIATES, INC. HOURLY BILLING RATES EFFECTIVE AUGUST 2009 Job Classification Hourly Rate Planning Environmental Trans orlation Air/Noise Cultural Resources Biology GIS Range* Principal Principal Principal I Principal Principal Principal Principal $140-275 Associate Associate Associate I Associate Associate Associate Associate $100 -190 Senior Planner Senior Environmental Planter Senior Transportation Planner /Engineer Senior Air Quality/ Noise Specialist Senior Cultural Resources Manager Senior Biologist/BotanisU Wildlife Biologist/ Ecologist/Sail Scientist/ Her etologist/Arborist Senior GIS Specialist $85 -170 Planner Environmental Planner Transportation Planner/ Engineer Air Quality/Noise Specialist Cultural Resources Manager Biologist/Butanist/VJildlife Biologist/Ecologist/Soil Scientist/Herpetologist/ Arborist GIS Specialist $70 -100 Assistant Planner Assistant Environmental Plann Assistant Transportation neuEngineer i Air QualuyiNoise Analvsl Cultural Resources Analyst Assistant Biologist/ BotanistAVildlife Biologist/ EcologisUSmil Scientist/ Herpeto lo ist/Arborist Assistant GIS Specialist $50 -100 Field Services Senior Field Crett9Field Crete I I $50-85 Office Services Research Assistant/Technic an $30-40 Graphics $80 -105 Office Assistant S55 -80. Word Processor reclinical Editing $70-95 The hourly rate f or �aork involving actual expenses in court, giving depositions or siin iIar expert testimony; will be billed at $400 per hour regardless of job classifications. LXORMconi met. doea 12i 161;09n I.SA ASSOCIATES. INC. LSA IN -HOUSE DIRECT EXPENSES L: �COR ll,on Imadoc ,12, 161M, Unit Cost Reproduction (8.5 x 11 ) B/W $0.10 per page Reproduction 8.5 x l l Color $1.00 per page Reproduction 11 x 17 B/W $0.16 per page Reproduction 71 x 17 Color $2.50 per page CD Production $5.00 per CD Plotting $3.75 per sf Mileage On Road $0.50 per mile Mileage Off -Road $0.65 per mile GPS Unit $100.00 per day Sound Meter $75.00 per day Aerial Photos 1 $200.00 per photo L: �COR ll,on Imadoc ,12, 161M, .I lemW: bDL LSAASSOCI7 ®� CERTIFICA7 OF LIABILITY MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH INSUF DATE IDOm, )CDR : POATE MM/DDmE .SCE 5 /12 /10 PRODUCER GENERALLIASILITY THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Dealey, Renton 8. Associates P. O. Box 12675 EACH OCCURRENCE ONLY HOLDER. ALTER AND CONFERS NO RIGHTS UPON THE CERTIFICATE THIS CERTIFICATE DOES NOT AMEND, EXTEND OR THE COVERAGE AFFORDED BY THE POLICIES BELOW. Oakland, CA 94604 -2675 X COMMERCIAL GENERAL LIABILITY 510 4653090 INSURERS AFFORDING COVERAGE INSURED INSURER A- Zurich American Ins. Co. LSA Associates, Inc. 20 Executive Park, Suite 200, Irvine, CA 92614 PERSONAL &ADV INJURY INSURER B: American Automobile Ins. Co. INSURER C: Hartford Fire Ins. Co. INSURER D: INSURER E: GENERAL AGGREGATE $2 000 000 COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTR TYPE OF INSURANCE POLICY NUMBER POATE MM/DDmE LICY PDATE NIMIDD TION LIMITS A GENERALLIASILITY GL0915744402 09130109 09130 /10 EACH OCCURRENCE FIRE DAMAGE (Anyenafire) _$_1,000,000 S100000 X COMMERCIAL GENERAL LIABILITY CLAIMS MADE EZ OCCUR MED EXP (Any one person) S5,000 PERSONAL &ADV INJURY $1000000 GENERAL AGGREGATE $2 000 000 GEN'L AGGREGATE LIM ITAPPLIES PER: PRODUCTS - COMP /OPAGG I $2,000,000 T POLICY PRO- JECT : LOC C AUTOMOBILE X LIABILITY ANY AUTO 57UUNIF1488 09/30109 09/30/10 COMBINED SINGLE LIMIT (Ea accidarn) $1,000,000 BODILY INJURY (Per person) $ ALL OWNED AUTOS SCHEDULED AUTOS X BODILY INJURY (Per accitleM) $ HIRED AUTOS NON -OWNED AUTOS X PROPERTY DAMAGE (Per accident) S GARAGE I TM EA A EA OTHER THAN ANY AUTO 0 I $ AUTO AGG EXCESS LIABILITY EACH OCCURRENCE $ I OCCUR F1 CLAIMS MADE AGGREGATE $ S DEDUCTIBLE S S RETENTION S B 'WORKERS COMPENSATION AND WZP80977527 09/30/09 09/30/10 X V� STAN- OTH- EMPLOYERS' LIABILITY E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE - EA EMPLOYEE $1,000,000 E.L. DISEASE - POLICY LIMIT 51,000,000 A OTHER Professional EOC916093502 09130109 09/30110 $2,000,000 per claim Liability $4,000,000 annl aggr. DESCRIPTION OF OPERATIONSILOCAnONSNEHICLESIEXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS General Liability policy excludes claims arising out of the performance of professional services. Project Name /Number: Newport Beach Civic Center and Park/CNB1003. City of Newport Beach, Its Elected or Appointed Officers, Officials, (See Attached Descriptions) City of Newport Beach Attn: Shauna Oyler 3300 Newport Boulevard Newport Beach, CA 92658 SHOULD ANYOF TH E ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE TH E EXPIRATION DATE THEREOF, THE ISSUING INSURER WIpLxAXft%Jt TO MAIL 30 —DAYS WRITTEN NOTICE TO TH E CERTIFICATE HOLDER NAM ED TOTH E LEFT,xK$%)( ACORD 25 -S (7/97)1 of 2 #M258682 CCB © ACORD CORPORATION 1988 DES' 'ZIPTIONS (Continued from F je 1) 1 Employees, Agents and Volunteers are additional insureds as respects General & Automobile Liability per policy form wording. Such insurance is Primary & Non - Contributory with Severability of Interest clause. A Waiver of Subrogation applies to General, Auto & Workers Compensation coverages. See attachments. AMS 25.3 (07197) 2 of 2 #M258682 POLICYNUMBER: GL0915744402 COMMERCIAL GENERAL LIABILITY CG 20 10 07 04 ,q THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY. ADDITIONAL INSURED e OWNERS, LESSEES OR CONTRACTORS a SCHEDULED PERSON OR This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organziation(s): Location(s) Of Covered Operations City of Newport Beach NAME OF ADDITIONAL INSURED Attn: Shauna Oyler PERSON(S) OR ORGANIZATIONS 3300 Newport Boulevard CONT'D: City of Newport Beach, Newport Beach, CA 92658 Its Elected or Appointed caused, in whole or in part, by: Officers, Officials, Employees, 1. Your acts or omissions; or Agents and Volunteers Information required to complete this Schedule, if not shown above, will be shown in the Declarations_) A. Section II - Who Is An Insured is amended to This insurance does not apply to "bodily injury" or include as an additional insured the person(s) or "property damage" occurring after: organization(s) shown in the Schedule, but only 1. All work, including materials, parts or equip - with respect to liability for "bodily injury", "property ment furnished in connection with such work, damage" or "personal and advertising injury" on the project (other than service, mainte- caused, in whole or in part, by: nance or repairs) to be performed by or on 1. Your acts or omissions; or behalf of the additional insured(s) at the loca- 2. The acts or omissions of those acting on your tion of the covered operations has been com- behalf; pleted; or in the performance of your ongoing operations for 2. That portion of "your work' out of which the the additional insured(s) at the location(s) desig- injury or damage arises has been put to its nated above. intended use by any person or organization B. With respect to the insurance afforded to these other than another contractor or subcontrator additional insureds, the following additional exclu- engaged in performing operations for a sions apply: principal as a part of the same project. CG 2010 07 04 Copyright, ISO Properties, Inc., 2004 Page 1 of 1 UNIFORM 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. (The following "attaching clause" needs to be completed only when this endorsement is issued subsequent to preparation of the policy.) This endorsement forms a part of Policy No. WZP80977527 Issued to: LSA Associates, Inc. By: American Automobile Ins. Co. Premium (if any) TBD We have a 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. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us). You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 2 -5% of the California workers compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description City of Newport Beach Project Name /Number: Newport Beach Civic Attn: Shauna Oyler Center and Park /CNB1003. City of Newport 3300 Newport Boulevard Beach, Its Elected or Appointed Newport Beach, CA 92658 Officers, Officials, Employees, Agents and Volunteers `0 IAIJ WC 04 03 06 Countersigned by (Ed. 4 -84) Authorized Representative Insured: LSA Associates, Inc. Insurer: Hartford Fire Insurance Co. Policy Number: 57UUNIF1488 Policy Effective Dates: September 30, 2009 - September 30, 2010 Additional Insureds: City of Newport Beach, its Elected or Appointed Officers, Officials, Employees, Agents and Volunteers EXCERPTS FROM CA 00001 (1001) HARTFORD BUSINESS AiTI'O COVERAGE Additional Insured: SECTION II— LIABILITY COVERAGE 1. WHO IS AN INSURED: The following are "insureds" c. Anyone liable for the conduct of an "insured "...but only to the extent of that liability. Primary Insurance: SECTION IV — BUSINESS AUTO CONDITIONS B. General Conditions - 5. Other Insurance a. For any covered "auto" you own, this Coverage Form provides primary insurance. For any covered "auto" you don't own, the insurance provide by this Coverage Form is excess over any other collectible insurance. c. Regardless of the provisions of paragraph a. above, this Coverage Form's Liability Coverage is primary for any liability assumed under an "insured contract ". Cross Liability Clause: SECTION V — DEFINITIONS G. "Insured" means any person or organization qualifying as an insured in the Who is An Insured provision of the applicable coverage. Except with respect to the Limit of Insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or "suit" is brought. EXCERPTS FROM HA9916 (0302) HARTFORD C0MMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT 15. WAIVER OF SUBROGATION — We waive any right of recovery we may have against any person or organization with whom you have a written contract that requires such waiver because of payments we make for damages under this Coverage Form. CERTIFICATE OF INSURANCE CHECKLIST Coy of Newport Beads This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 05/24/10 Dept. /Contact Received From: Shauna Oyler Date Completed: 05/26/10 Sent to: Shauna By: Casey Rogers Company /Person required to have certificate: LSA Associates Service(s) Provided: GENERAL LIABILITY A. INSURANCE COMPANY: Zurich American Insurance Co. B. EFFECTIVE DATES: 09/30/09 to 09/30/10 C. AM BEST RATING (A-: VII or greater): "A" (XV) D. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No E. LIMITS (Must be $1 M or greater): What is limit provided? $1,000,000 F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers) ® Yes ❑ No G. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? Yes ❑ No H. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No I. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence' wording? ❑ Yes ® No J. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: Hartford Fire Insurance Compan B. EFFECTIVE DATES: 09/30/09 to 09/30/10 C. AM BEST RATING (A-: VII or greater) "A" (XV) D. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No E. LIMITS (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): n/a Is it included? n/a ❑ Yes ❑ No G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. III. WORKERS' COMPENSATION A. INSURANCE COMPANY: American Automobile Insurance Company B. EFFECTIVE DATES: 09/30/09 to 09/30/10 C. AM BEST RATING (A-: VII or greater): "A" (XV) D. LIMITS: Statutory E. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: USeU ,Anv6 x.09ers Agent of Brown & Brown Date Broker of record for the City of Newport Beach ❑ Requires approval /exception /waiver by Risk Management Comments: Approved: Risk Management Date 0,5/26/20 initials ® Yes ❑ No CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item NoJI April 27, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Jaime Murillo, Associate Planner 949 - 644 -3209, j_murillo(a)newportbeachca qov Public Work's Department Stephen Badum, Public Work's Director 949 - 644 -3311, sbadum(a-)newportbeachca qov SUBJECT: CIVIC CENTER & PARK DEVELOPMENT PROJECT- APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH LSA ASSOCIATES, INC., FOR BIOLOGICAL, CULTURAL, AND PALEONTOLOGICAL MONITORING SERVICES ISSUE Should the City authorize a Professional Services Agreement with LSA Associates, Inc. (LSA) to provide the required biological, cultural, and paleontological monitoring during the grading and excavation phase of the Civic Center & Park construction? RECOMMENDATION Approve a Professional Services Agreement with LSA Associates, Inc., (Attachment CC No. 1) for biological, cultural, and paleontological monitoring and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION Background On November 24, 2009, the City Council adopted Resolution No. 2009 -087 certifying Environmental Impact Report (EIR) ER2009 -001 (SCH No. 2009041010) and adopting a Mitigation Monitoring and Reporting Program (MMRP) for the Civic Center & Park Development Plan project. PSI, with LSA Associates, Inc. April 27, 2010 Page 2 The EIR for the project identified a number of potentially significant construction impacts that would be avoided or substantially lessened with the adoption of mitigation measures which were included in the adopted MMRP for the project. Certain mitigation measures (listed in Attachment No. CC 2) were adopted to avoid or minimize biological, cultural, and paleontological impacts during construction. These mitigation measures include pre- construction bird surveys and the use of monitors during grading. Proposal LSA is the environmental consulting firm that prepared the EIR for the project, including the initial Biological Resource Assessment, Archeological Resource Assessment, and Paleontological Resources Assessment reports for the project site. B ased on their familiarity with the project site and previous experience with the project, staff requested a proposal from LSA to provide the required surveys and monitoring during construction. The proposed work includes: 1) preconstruction meetings with the City and Contractor; 2) pre- construction bird surveys; 3) biological resource monitoring; 3) review of final landscape and irrigation plans; 4) archeological monitoring; 5) paleontological monitoring; 6) preparation of monitoring reports; and 7) City coordination and project management. In addition to LSA's familiarity and previous experience with the project site, staff recommends the use of LSA due to their extensive experience in the field of biological and cultural resources, their proximity to the site (Irvine office), and their ability to dedicate full -time monitors during the extensive grading period. For cost containment, LSA is proposing the use of a single qualified monitor trained to monitor both archeological and paleontological resources, rather than the use of two separate monitors. Where feasible, the monitor will be cross - trained to conduct biological observation, which results in a savings of approximately $24,000 over contracting with a separate biological consulting firm. Staff also negotiated with LSA to reduce all hourly fees by $5 /hour and to reduce the number of hours a Field Director is needed to manage monitoring efforts by 50 percent, resulting in an additional savings to the City in the amount of $15,400, for a total savings of $39,400. The proposed cost for the professional services is a "not to exceed" amount of $108,160.00 on a time and materials basis per the attached proposal. Staff confirmed with C.W. Driver and Sirius Environmental that the LSA proposal is competitive based on their experience with sub - consultant rates. For verification, staff also received another proposal from Glenn Lukos Associates (GLA) for the pre - construction bird surveys and the biological monitoring in the amount of $49,990 01 PSA with LSA Associates, Inc. April 27, 2010 Page 3 ($28,890 more than LSA for the biological services). Staff also investigated the costs of other cultural resource consultants and found that their hourly fees were comparable. Environmental Review The City Council's approval of this item does not require environmental review. An Environmental Impact Report (SCH No. 2009041010) was prepared for the Civic Center & Park Development Plan project and was certified by the City Council on November 24, 2009. Public Notice This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in advance of the public meetings at which the City Council considers the item). Funding Availability There are sufficient funds available in the following account: Account Description Account Number Amount Newport Beach Civic Center 7410- C1002009 $ $108,160 $ 108,160 Prepared by: Jaime Murillo Associate Planner Attachments: Submitted by: CC1 Professional Services Agreement CC2 Applicable Mitigation Measures F: \USERS\PLN \Shared \PA's \PAs - 2009\PA2009- 043 \City Hall EIRWlitigation Monitoring \Construction Monitoring \Cc rpt 20100427 LSA PSA .docx W I ,FGRll,.l� ri PROFESSIONAL SERVICES AGREEMENT WITH LSA ASSOCIATES, INC. FOR BIOLOGICAL, CULTURAL 8, PALEONTOLOGICAL MONITORING OF NEWPORT BEACH CIVIC CENTER 8% PARR DEVELOPMENT PROJECT THIS AGREEMENT is made and entered into as of this day of 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and LSA ASSOCIATES, INC., a California Corporation whose address is 20 Executive Park, Suite 200, Irvine, California, 92614 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to design and construct a new City Civic Center and Park Development Project. C. City desires to engage Consultant to provide biological, cultural and paleontological monitoring services for the new City Civic Center and Park Development Project ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Lloyd Sample. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth. in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31st day of December, 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The 7 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 One Hundred Eight Thousand, One Hundred Sixty Dollars and no /100 ($108,160.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 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 NICOLE DUBOIS 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 Public Works Department. STEVE BADUM shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized 3 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. 4 io 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. 5 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 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 6 0- employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. w3 iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents-and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership orjoint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any work 8 1� performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and 9 15 invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 10 Ro 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: With a copy to: Attn: Steve Badum, Director Public Works Department City of Newport Beach PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3311 Fax: 949 - 644 -3308 Attn: William Hahn C.W. Driver, Inc. 15615 Alton Parkway, Ste. 150 Irvine, CA 92618 Phone: 949 - 261 -5100 Fax: 949 - 261 -5167 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Lloyd Sample LSA Associates, Inc. 20 Executive Park, Suite 200 Irvine, CA 92614 Phone: (949) 553 -0666 Fax: (949) 553 -8076 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. 11 17 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 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. 12 18 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. 13 N IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: O CE F W THE �ICITY ATTORNEY: e nie Mulvihill, 30) ' p Assistant City Attorney J '(qWo ATTEST: IN Leilani I. Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Keith D. Curry, Mayor LSA ASSOCIATES, INC.: 0 in Robert H. McCann, President James Baum, Chief Financial Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 14 a0 i a1. L LSA ASSOCIATES, INC. J LSA ASSOCIATES. SUITE 200 949,553.0666 TEL IRVINE. CALIFORNIA 92614 949.55].80]6 FAX April 1, 2010 Mr. Jaime Murillo, Associate Planner City of Newport Beach Planning Department 3300 Newport Boulevard Newport Beach, CA 92658 -8915 RIVERSIDE BERKELEY FRESNO ROCKLIN CARLSBAD PALM SPRINGS SAN LVIS OBISPO FORT COLLINS POINT RICHMOND SOUTH SAN FRANCISCO Subject: Proposal for Biological, Cultural, and Paleontological Monitoring Dear Mr. Murillo: LSA Associates, Inc. (LSA) is pleased to submit this proposal to provide Biological and Cultural Monitoring Services for the recently approved City Hall and Park Development Plan Project (Civic Center Project). This proposal is based on our understanding of the project, the certified Environmental Impact Report (EIR), familiarity with the project site based on site surveys and previous monitoring, and conversations with you. LSA looks forward to the opportunity to provide Biological and Cultural Monitoring Services to the City of Newport Beach (City) and to further its work experience with the City. Nicole Dubois will be the Project Manager for this work effort, and Mona DeLeon will be the Principal in Charge. Jim Harrison will be the Task Manager for all Biological Monitoring Services, and Lloyd Sample will be the Task Manager for all Cultural (Archaeological and Paleontological) Monitoring Services. Based on the schedule provided by C.W. Driver and the City, the current grading for the project is anticipated to take 5 months (May through September 2010). For this proposal, construction has been estimated to occur over 110 days (5 months at 22 working days per month). For cost containment, monitors used for the project will be trained to monitor for both cultural and paleontological resources. In addition, where feasible, the cultural paleontological monitors will be trained to conduct biological observation. LSA can assure the City that it will respond to any relevant issues or concerns that may arise and will present options consistent with your goals and priorities for the project. Thank you in advance for your consideration of this proposal. Although every effort has been made to anticipate your needs, LSA welcomes the opportunity to discuss strategy and this scope of work. If you have any questions, please contact either Lloyd Sample or Steve Conkling at (949) 553 -0666. Sincerely, LSA ASSO IATES, I ... Steve C g yd mple Fr inc' Project Manager 04101110 VH:Wico1eD \Fi1m\Proposa1 Documents\CNB Proposal for Monilcring.docu PLANNING 1 ENVIRONMENTAL SCIENCES 1 DESIGN / M LSA ASSOCIATES, INC. PROPOSAL FOR HIOLOCICAL AMU CULTURAL MONITORIM. SERVICES APRIL SOIO CITY HALL AND PARK ntVELOPMENT PLAN PROJECT INTRODUCTION LSA's Natural Resources staff is known for outstanding expertise in the evaluation, management, and restoration of biological resources. The staff of scientists prepares biological resource inventories, constraints analyses, and impact assessments. LSA's extensive experience in wetlands analysis, special - status species evaluation, and environmental permitting is respected by both clients and regulatory agency staff. LSA designs habitat restoration plans and mitigation banks, implements and monitors revegetation programs, and facilitates successful completion of permitting assignments. The extensive use of geographic information system (GIS) and global positioning system (GPS) software and data has become a regular part of LSA's work. LSA's Natural Resources staff is the single largest technical discipline within LSA, with 35 professional staff members in four Southern California offices. With over 70 biologists statewide, LSA can always consult internally with someone who has dealt with and overcome similar complex issues. LSA has managed and monitored numerous habitat restoration and habitat creation projects until being released from further obligations by the resource agencies, including the United States Army Corps of Engineers (Corps), California Department of Fish and Game (CDFG), and the United States Fish and Wildlife Service ( USFWS). LSA has experience with habitat restoration and mitigation sites ranging in area from less than 1 acre to several hundred acres. The projects address habitat types ranging from desert scrub to coastal wetlands. The professional staff has a broad base of hands -on experience to effectively address and correct problems encountered during implementation. LSA's Cultural Resources staff provides field surveys, testing, laboratory services, resource evaluation, historical assessments, and monitoring expertise. PROPOSAL Task 1: Preconstruction Meeting This task provides for a preconstruction meeting between the City, the City's Construction Contractor, and LSA's biological and cultural /paleontological monitors. This meeting is expected to occur on site and is not expected to last more than 3 hours including travel time. The purpose of the meeting is for LSA's monitors to review and discuss the construction monitoring schedule and requirements with the City and the City's construction contractors, so as to be in compliance with the conditions specified in the Final EIR (FEIR). Task 2: Conduct Preconstruction Bird Surveys In the event that project construction or grading activities are scheduled to occur within the active breeding season for birds (i.e., February 15— August 31), a nesting bird survey will be conducted by a qualified and experienced LSA biologist within 7 days of the commencement of scheduled clearing and grubbing of vegetation or other activities involving disturbance of native (e.g., coastal sage scrub [CSS]) habitat on site. Concurrently, the LSA biologist will also locate any California gnatcatchers and/or cactus wrens that may occur within 100 feet (ft) of the designated construction area. This proposal assumes no more than one such survey. In addition, the City will notify the USFWS and H: \NicoleDTiles \Proposal Documalls \CNB Proposal for Moniloring.doc 44101/10r 2 LEA ASSOCIATES. INC. PROPOSAL FOR BIOLOCICAL AND CULTURAL MONITORING SERVICES APRIL ]Il0 CITY HALL AND PARK DEVELOPMENT PLAN PROJECT CDFG at least 7 days prior to corrunencement of clearing and grubbing activities. If active nesting of birds is observed within 100 ft of the designated construction area prior to construction, LSA will determine the appropriate buffer distance based on the specific nesting bird species and circumstances involved, and the construction contractor will immediately demarcate the buffer perimeter around the active nest. If active nesting occurs, the LSA biologist will need to briefly revisit the site to definitively verify that the birds have fledged from the nest. Once this has been determined, the buffer may be removed by the construction contractor. LSA anticipates up to three separate site visits to verify the completion of nesting. The locations of any California gnatcatchers, cactus wrens, and /or active bird nests will be clearly mapped and provided to the City for inclusion on its construction/grading plans, and a brief memorandum or letter documenting the results of the preconstruction bird survey will also be provided to the City. Task 3: Biological Resources Monitoring An LSA biologist will monitor the installation of protective orange snow fence along the entire construction perimeter of the area to be preserved in place, including the jurisdictional drainages, primarily to ensure that the fence is installed at the appropriate location outside of the Corps and CDFG jurisdictional limits. Monitoring the fence installation is estimated to take no more than one work day (up to 9 hours including travel time) to complete. The biological monitor will also be present during the clearing and grubbing of vegetation (particularly CSS) occurring within 300 ft of the orange snow fencing. The City has indicated a total of 10 working days to complete these clearing and grubbing activities. For purposes of this proposal and commensurate with the proposed budget, LSA assumes 8 hours of monitoring per work day and 1 additional hour of round trip travel time to and from the site per day. Following the clearing and grubbing activities, LSA will monitor grading work occurring within 300 ft of the orange snow fence. The Construction Contractor has estimated that there will be a total of 60 work days during which grading is likely to occur within 300 ft of the orange snow fence. LSA has allocated up to a total of 72 hours for an LSA biologist to visit the site periodically during those 60 days of grading to check on the condition of the area and coordinate with the contractor. When the LSA biologist is not present on site during those 60 days, an LSA archaeologisUpaleontologist, cross - trained in biology and made aware of the pertinent biological issues, will monitor grading within 300 ft of the fence, this monitoring is already included under the scope and budget for the proposed archaeological/paleontological monitoring work. Utilizing one monitor to cover both biological and archaeological /paleontological concerns, particularly when the clearing and grubbing is complete, will result in a significant cost savings of approximately $24,000 to the City. An LSA biological monitor will be present during removal of invasive exotic plants in the drainages within the area of preservation. This is expected to take one working day (up to 9 hours including travel time) to complete. The biological monitor will also be present during the installation of pedestrian footbridges and construction of trails /footpaths in the area of preservation. LSA has allocated up to two working days (up to 18 hours including travel time) for this monitoring work. li: \Nicole[)\Files \Proposal Documents \CN11 Proposal for Monitoring.dec x04/01 /IOM aq LSA ASSOCIATES. INC. PROPOSAL FOR BIOLOCICAL AND CULTURAL MONITORING SERVICES APRIL 2010 CITY HALL AND PARK DEVELOPMENT PLAN PROJECT At the completion of all construction activities in the central parcel, the biological monitor will conduct a final inspection of the area prior to the removal of the orange snow fence. This site visit is not expected to last longer than 2 hours total, including travel time to and from the site. The biological monitor will, as necessary, maintain direct contact with the City representative throughout the construction process. Task 4: Review Final Landscape and Irrigation Plans A qualified LSA biologist will review the final landscape plans (including the proposed planting palette) and the irrigation plans to verify that the native habitat in the preserved area will not be adversely affected by the surrounding landscaping and irrigation activities. LSA has allocated up to 16 hours for this review. Brief documentation in the form of an email and/or marked -up copy of the plans will be provided to the City. Task S: Cultural Resources Monitoring Cultural resources are typically contained in the first 6 ft of soil. Within the project area, only limited areas with a potential to contain cultural resources are present. LSA archaeologists will be present during ground- disturbing excavations to monitor for cultural resources. For budgetary purposes, LSA has assumed that 10 percent of total project grading (11 days) will be spent in clearing and grubbing of the type that might impact cultural resources. Consistent with Mitigation Measure 4.6.2 in the City's Final EIR for this project, LSA will follow monitoring and reporting procedures specified in the Archaeological Monitoring Plan (AMP) for the project. Task 6: Paleontological Resources Monitoring LSA paleontologists will be present during ground- disturbing excavations to monitor for fossil resources. Paleontological resources can be located throughout the area that is to be graded, regardless of the depth of grading, because the sediments are site are paleontologically sensitive sediments (i.e., Middle Pleistocene marine and terrestrial sediments as well as Middle Miocene Monterey Formation sediments). Paleontological monitors will be required for the remaining 99 days of project grading. Consistent with Mitigation Measure 4.6.4 in the City's Final EIR for this project, LSA will follow monitoring and reporting procedures specified in the Paleontological Resources Impact Mitigation Program (PRIMP) for the project. Task 7: Cultural and Paleontological Resources Monitoring Reports Since both cultural and paleontological resources may be present within the project area, and since monitors from both disciplines will be present during project construction, a report discussing the results of the monitoring efforts for each discipline will need to be prepared, consistent with the requirements of Mitigation Measures 4.6.2 and 4.6.4 in the City's certified Final EIR for this project. After completion of monitoring efforts, a Cultural Resources monitoring report, detailing the methods used and results obtained from monitoring, will be prepared following the standard guidance provided by the Office of Historic Preservation. Completion of this report and its submittal to the Regional H: \NicoleD \Files \Proposal Documents \C14B Proposal for Monitoring.doc 04 /01 1I0u J LSA ASSOCIATES. INC. PROPOSAL FOR BIOLOGICAL AND CULTURAL MONITORING SERVICES APRIL 2010 CITY HALL AND PARK DEVELOPMENT PLAN PROJECT Information Center signifies completion of Mitigation Measure 4.6.2. This proposal assumes that no cultural resources will be encountered during monitoring. If cultural resources are encountered, a budget amendment may be necessary to address the discovery. After completion of paleontological monitoring efforts, a report detailing the methods used and results obtained from monitoring will be prepared. Completion of this report and its submittal to the City signifies completion of Mitigation Measure 4.6.4. This proposal assumes that no fossils will be encountered during monitoring. If paleontological resources are encountered, a budget amendment may be necessary to address the discovery. Task 8: City Coordination and Project Management LSA will coordinate closely with and maintain regular communication with the Construction Contractor and City staff in order to complete the tasks as quickly and efficiently as possible and to allow City staff to remain informed as to the work currently being conducted by LSA and as to the associated work schedule. During intense or active periods of work, LSA will communicate periodically with City staff via telephone. Other than the preconstruction site meeting identified in Task 2 above, LSA does not anticipate the need to attend any meetings as part of the scope of work identified above. LSA specifies 10 hours for coordination regarding biological monitoring tasks, and 12 hours for coordination regarding cultural and paleontological monitoring tasks. BUDGET LSA proposes to accomplish Tasks I -8 as described above for an estimated fee of $108,160, as shown in Table A. The breakdown of this fee is roughly $21,100 for biological monitoring and $77,120 for cultural and paleontological monitoring. LSA fees are charged on an hourly basis, consistent with the Schedule of Standard Contract Provisions and Billing Rates, which is provided in Appendix A. This amount will not be exceeded without your authorization. LSA will aggressively identify strategies for reducing the overall work effort while maintaining the City's objectives and the legal adequacy of the work products. As you are aware, this proposal is based on the estimated hourly grading schedule provided by C.W. Driver. In the event actual grading activities exceed 110 days (5 months at 22 working days per month), or the number of hours of work per day exceeds 8 hours, LSA may seek a budget augment. Table A: Budget TASK BUDGET Task 1: Preconstruction Meeting $1,080 Task 2: Conduct Preconstruction Bird Surveys $4,500 Task 3: Biological Construction Monitoring 40 hours per week, 5 days/week, 10 days) $14,200 Task 4: Review Final Landscape and Irrigation Plans $2,400 Task 5: Cultural Resource Monitoring 40 hours per week, 5 days/week, I 1 days) $7,600 Task 6: Paleontological Resource Monitoring 40 hours per week, 5 days/week, 99 days) $69,520 Task 7: Cultural and Paleontological Resources Monitoring Reports $4,600 Task 8: City Coordination and Project Management $3,060 Reimbursable Bx enses $1,200 TOTALI $108160 H:\NicoleD\Fila \Proposal Documents \CNO Proposal for Moniloring.doca04 /0111011 / I 17 � LSA MSOCIATE9. INC. HOURLY BILLING RATES EFFECTIVE AUGUST 2009 Job Classification Hourly Rate Planning Environmental Transportation Air/Noise Cultural Resources Biology GIs Range- Principal Principal Principal Principal Principal Principal Principal $140 -275 Associate Associate I Associate Associate Associate Associate Associate $100 -190 Senior Planner Senior Environmental Senior Transportation Senior Air Quality/ Senior Cultural Senior Biologist/Botanist/ Senior GIs $85 -170 Planner Planner/Engineer Noise Specialist Resources Manager Wildlife Biologist/ Specialist Ecologist/Soii Scientist/ He etolo ist/Arborist Planner Environmental Planner Transportation Planner/ Air Qualiry/Noise Cultural Resources BiologistBoumost(Wildlife GIs Specialist $70 -100 Engineer Specialist Manager Biologist/Ecologist/Scil Scientist/Herpeto I o gis V Arborist Assistant Planner Assistant Assistant Transportation Air Quality/Noise Cultural Resources Assistant Biologist/ Assistant GIS Environmental Planner Planner/Engineer Analyst Analyst BotanistAVildlife Biologist/ Specialist Ecologist/Soil Scientist/ Field Services hS50— Senior Field Crew/Field Crew Office Services Research Assistant /fechnician Gra hits Ofice Assistant Word Processin ethnical Editin I $70-95 The hourly rate for work involving actual expenses in court, giving depositions or similar expert testimony, will be billed at $400 per hour regardless ofjob classifications. L: \CORP \contract.dcc ,12/16/09n r LSA ASSOCIATES. INC. LSA [N -DOUSE DIIiECT EXPENSES L: \CORP \contract.do .12/16 /091, Reproduction 8.5 x 11 B/W per page_ Reproduction 8.5 x I1 Color age a$2.5O Reproduction 11 x 17 B/W per page Reproduction 11 x 17 Color e CD Production D Plotting $3.75 ersf Mileage On Road $0.50 per mile Mileage Off -Road $0.65 per mile GPS Unit $100.00 per day Sound Meter $75.00 er da Aerial Photos $200.00 per I)hoto L: \CORP \contract.do .12/16 /091, 30 Applicable Mitigation Measures BibloilglbaCRes4W ces ^ :A ", <:e. PDF BIO -1: Removal of Invasive Exotic Plants. Invasive exotic plant species (e.g., myoporum, castor bean, pampas grass) associated with the wetland /riparian habitat shall be removed, and mulefat and willow cuttings and other appropriate lant species shall be installed. PDF BI0-2: Native Plants. The landscaping palette to be used on site shall include the use of native plant species in addition to drought tolerant, ornamental, and turf species. The landscaping palette shall also prohibit the use of invasive exotic plants (i.e., those plant species rated as "High" or "Moderate" in the California Invasive Plant Council's [Cal-IPCJ Invasive Plant Inventory). MM 4.5.2: Migratory Bird Treaty Act. In the event that project construction or grading activities should occur within the active breeding season for birds (i.e., February 15— August 15), a nesting bird survey shall be conducted by the designated project biologist prior to commencement of construction activities. If active nesting of birds is observed within 100 feet (ft) of the designated construction area prior to construction, the construction crew shall establish an appropriate buffer around the active nest. The designated project biologist shall determine the buffer distance based on the specific nesting bird species and circumstances involved. Once the designated project biologist verifies that the birds have fledged from the nest, the buffer may be removed. Prior to commencement of grading activities or issuance of any building permits, the City of Newport Beach Director of Planning, or designee, shall verify that all project grading and construction plans include specific documentation regarding the requirements of the Migratory Bird Treaty Act (MBTA), that preconstruction surveys have been completed and the results reviewed by staff, and that the appropriate buffers (if needed) are noted on the plans and established in the field with orange snow fencing. MM4.5.3: Wetland/Riparian Habitat Enhancement. Prior to the commencement of grading activities associated with the central parcel, the City of Newport Beach (City) Director of Planning, or designee, shall verify that grading plans require the installation of orange snow fencing along the entire construction perimeter of the jurisdictional drainages. The City of Newport Beach Director of Planning, or designee, shall also verify that the City has contracted a qualified, experienced biologist to be present on site when the orange snow fence is installed to ensure that it is installed at the appropriate location outside of the United States Army Corps of Engineers (ACOE) and the California Department of Fish and Game (CDFG) jurisdictional limits. The orange snow fencing shall be maintained and left in place until all construction activities in the Central Parcel are complete. The biological monitor shall be present during any grading or vegetation removal activities occurring within 300 feet of the orange snow fencing. Prior to removal of the orange snow fencing at the completion of construction activities in the central parcel, the biological monitor shall conduct a final inspection of the area. The biological monitor shall, as necessary, maintain direct contact with the City representative throughout the construction process. MM4.5.4: Orange County Central and Coastal Subregion NCCP /HCP. Prior to commencement of grading activities, the City of Newport Beach (City) shall comply with the terms and conditions of the Orange County Central and Coastal Subregion Natural Communities Conservation Plan /Habitat Conservation Plan (NCCP /HCP) Implementation Agreement and construction minimization measures identified in the NCCP. The following five minimization measures, as outlined in the NCCP, are designed to reduce potential impacts associated with native habitat and associated general wildlife and are applicable to the proposed project site. 1. To the maximum extent practicable, no grading of coastal sage scrub (CSS) habitat that is occupied by nesting gnatcatchers shall occur during the breeding season (February 15 —July 15). It is expressly understood that this provision and the remaining provisions of these "construction- related minimization measures" are subject to public health and safety considerations. These considerations include unexpected slope stabilization, erosion control measures, and emergency facility repairs. In the event of such public health and safety circumstances, landowners or public agencies /utilities shall provide the United States Fish and Wildlife Service /California Department of Fish and Game (USFWS /CDFG) with the maximum practicable notice (or such notice as is specified in the NCCP /HCP) to allow for capture of gnatcatchers, cactus wrens, and any other CSS Identified Species that are not otherwise flushed and shall carry out the following measures only to the extent as practicable in the context of the public health and safety considerations. 3 1 2. Prior to the commencement of grading operations or other activities involving significant soil disturbance, all areas of CSS habitat to be avoided under the provisions of the NCCP /HCP shall be identified with temporary fencing or other markers clearly visible to construction personnel. Additionally, prior to the commencement of grading operations or other activities involving disturbance of CSS, a survey shall be conducted to locate gnatcatchers and cactus wrens within 100 feet of the outer extent of projected soil disturbance activities, and the locations of any such species shall be clearly marked and identified on the construction /grading plans. 3. A monitoring biologist, acceptable to USFWS /CDFG, shall be on site during any clearing of CSS. The City of Newport Beach Director of Planning or designee shall advise USFWS /CDFG at least 7 calendar days (and preferably 14 calendar days) prior to the clearing of any habitat occupied by Identified Species to allow USFWS /CDFG to work with the monitoring biologist in connection with bird flushing /capture activities. The monitoring biologist shall flush Identified Species (avian or other mobile Identified Species) from occupied habitat areas immediately prior to brush - clearing and earth - moving activities. If birds cannot be flushed, they shall be captured in mist nets, if feasible, and relocated to areas of the site to be protected or to the NCCP /HCP Reserve System. It shall be the responsibility of the monitoring biologist to assure that Identified bird species will not be directly impacted by brush - clearing and earth - moving equipment in a manner that also allows for construction activities on a timely basis. 4. Following the completion of initial grading /earth movement activities, all areas of CSS habitat to be avoided by construction equipment and personnel shall be marked with temporary fencing or other appropriate markers clearly visible to construction personnel. No construction access, parking, or storage of equipment or materials will be permitted within such marked areas. 5. CSS identified in the NCCP /HCP for protection and located within the likely dust drift radius of construction areas shall be periodically sprayed with water to reduce accumulated dust on MM4.6.1: Archaeological and Native American Monitors. Prior to commencement of any grading activity on site, the City shall retain an archaeological monitor and a Native American monitor to be selected by the City after consultation with interested Tribal and Native American representatives. Both monitors shall be present at the pregrade conference in order to explain the cultural mitigation measures associated with the project. Both monitors shall be present on site during all ground - disturbing activities (to implement the project Monitoring Plan) until marine terrace deposits are encountered. Once marine terrace deposits are encountered, archaeological and Native American monitoring is no longer necessary, as the marine deposits are several hundred thousand years old, significantly predating human settlement in this area. MM 4.6.2: Archaeological Monitoring Plan and Accidental Discovery. Prior to commencement of any grading activity on site, the City shall prepare a Monitoring Plan. The Monitoring Plan shall be prepared by a qualified archaeologist and shall be reviewed by the City of Newport Beach Director of Planning. The Monitoring Plan should include at a minimum: (1) a list of personnel involved in the monitoring activities; (2) a description of how the monitoring shall occur; (3) a description of frequency of monitoring (e.g., full -time, part-time, spot checking); (4) a description of what resources may be encountered; (5) a description of circumstances that would result in the halting of work at the project site (e.g., what is considered a "significant" archaeological site); (6) a description of procedures for halting work on site and notification procedures; and (7) a description of monitoring reporting procedures. If any significant historical resources, archaeological resources, or human remains are found during monitoring, work should stop within the immediate vicinity (precise area to be determined by the archaeologist in the field) of the resource until such time as the resource can be evaluated by an archaeologist and any other appropriate individuals. Project personnel shall not collect or move any archaeological materials or human remains and associated materials. To the extent feasible, project activities shall avoid these deposits. Where avoidance is not feasible, the archaeological deposits shall be evaluated for their eligibility for listing in the California Register of Historic Places. If the deposits are not eligible, avoidance is not necessary. If the deposits are eligible, adverse effects on the deposits must be avoided, or such effects must be mitigated. Mitigation can include, but is not necessarily limited to: excavation of the deposit in accordance with a data recovery plan (see California Code of Regulations Title 4(3) Section 5126.4(b)(3)(C)) and standard archaeological field methods and procedures; laboratory and technical analyses of recovered archaeological materials; production of a report detailing the methods, findings, and significance of the archaeological site and associated materials; curation of archaeological materials at an appropriate facility for future research and/or display; an interpretive display of recovered archaeological materials at a local school, museum, or library; and public lectures at local schools and /or historical societies on the findings and significance of the site and recovered archaeological materials. It shall be the responsibility of the City Department of Public Works to verify that the Monitoring Plan is implemented during project grading and construction. Upon completion of all monitoring/ mitigation activities, the consulting archaeologist shall submit a monitoring report to the City of Newport Beach Director of Planning and to the South Central Coastal Information Center summarizing all monitoring /mitigation activities and confirming that all recommended mitigation measures have been met. The monitoring report shall be prepared consistent with the guidelines of the Office of Historic Preservation's Archaeological Resources Management Reports (ARMR): Recommended Contents and Format. The City of Newport Beach Director of Planning or designee shall be responsible for reviewing any reports produced by the archaeologist to determine the appropriateness and adequacy of findings MM 4.6.3: Archaeological Site Avoidance. Grading and excavation in the vicinity of existing archaeological sites CA -ORA- 167/1117 and CA -ORA -1461 shall be avoided. To achieve level surfaces for proposed project paths, clean (culturally sterile) soils shall be used to cap and protect the sites. Capping shall be conducted consistent with the provisions of Public Resources Code (PRC) Section 21083.2(b)(3 and 4). Prior to commencement of grading activities, the City of Newport Beach Director of Public Works shall verify that project grading plans show avoidance of existing cultural sites. The Director of Public Works shall also verify that grading plans show that the known cultural sites shall be capped with a minimum of 12 inches of culturally sterile soils from a known source prior to commencement of any grading activity within 25 feet of these sites. The boundaries of the site shall be identified by a qualified archaeologist to ensure the entire site has been capped. Precise archaeological site information is protected from public disclosure by State law. The grading plan shall be clearly marked to indicate that any cultural resources information on those plans is not for public distribution. MM 4.6.4: Paleontological Resources Impact Mitigation Program. Prior to commencement of any grading activity on site, the Director of Planning, or designee, shall verify that a paleontologist, who is listed on the County of Orange list of certified paleontologists, has been retained and will be on site during all rough grading and other significant ground- disturbing activities in paleontologically sensitive sediments. The sensitive sediments that have been identified within the project include the Middle Pleistocene marine and terrestrial sediments as well as middle Miocene Monterey formation sediments. A paleontologist will not be required on site if excavation is only occurring in artificial fill. The paleontologist shall prepare a Paleontological Resources Impact Mitigation Program (PRIMP) for the proposed project. The PRIMP should be consistent with the guidelines of the Society of Vertebrate Paleontologists (SVP) (1995) and should include but not be limited to the following: Attendance at the pregrade conference in order to explain the mitigation measures associated with the project. During construction excavation, a qualified vertebrate paleontological monitor shall initially be present on a full -time basis whenever excavation will occur within the sediments that have a High paleontological sensitivity rating and on a spot -check basis in sediments that have a Low sensitivity rating. Based on the significance of any recovered specimens, the qualified paleontologist may set up conditions that will allow for monitoring to be scaled back to part-time as the project progresses. However, if significant fossils begin to be recovered after monitoring has been scaled back, conditions shall also be specified that would allow increased monitoring as necessary. The monitor shall be equipped to salvage fossils and /or matrix samples as they are unearthed in order to avoid construction delays. The monitor shall be empowered to temporarily halt or divert equipment in the area of the find in order to allow removal of abundant 33 or large specimens. The underlying sediments may contain abundant fossil remains that can only be recovered by a screening and picking matrix; therefore, these sediments shall be occasionally be spot - screened through one - eighth to one - twentieth -inch mesh screens to determine whether microfossils exist. If microfossils are encountered, additional sediment samples (up to 6,000 pounds) shall be collected and processed through one - twentieth -inch mesh screens to recover additional fossils. Processing of large bulk samples is best accomplished at a designated location within the project that will be accessible throughout the project duration but will also be away from any proposed cut or fill areas. Processing is usually completed concurrently with construction, with the intent to have all processing completed before, or just after, project completion. A small corner of a staging or equipment parking area is an ideal location. If water is not available, the location should be accessible for a water truck to occasionally fill containers with water. Preparation of recovered specimens to a point of identification and permanent preservation. This includes the washing and picking of mass samples to recover small invertebrate and vertebrate fossils and the removal of surplus sediment from around larger specimens to reduce the volume of storage for the repository and the storage cost for the developer. Identification and curation of specimens into a museum repository with permanent, retrievable storage, such as the Natural History Museum of Los Angeles County (LACM). Preparation of a report of findings with an appended, itemized inventory of specimens. When submitted to the City of Newport Beach Director of Planning or designee, the report and inventory would signify completion of the program to mitigate impacts to paleontological resources. MM 4.6.5: Human Remains. Consistent with the requirements of California Code of Regulations (CCR) Section 15064.5(e), if human remains are encountered, work within 25 feet of the discovery shall be redirected and the County Coroner notified immediately. State Health and Safety Code Section 7050.5 states that no further disturbance shall occur until the County Coroner has made a determination of origin and disposition pursuant to Public Resources Code Section 5097.98. If the remains are determined to be Native American, the County Coroner shall notify the Native American Heritage Commission (NAHC), which will determine and notify a most likely descendant (MLD). With the permission of the City of Newport Beach, the MLD may inspect the site of the discovery. The MLD shall complete the inspection within 46 hours of notification by the NAHC. The MLD may recommend scientific removal and nondestructive analysis of human remains and items associated with Native American burials. Consistent with CCR Section 15064.5(d), if the remains are determined to be Native American and an MILD is notified, the City of Newport Beach shall consult with the MLD as identified by the NAHC to develop an agreement for the treatment and disposition of the remains. Upon completion of the assessment, the consulting archaeologist shall prepare a report documenting the methods and results and provide recommendations regarding the treatment of the human remains and any associated cultural materials, as appropriate, and in coordination with the recommendations of the MLD. The report should be submitted to the City of Newport Beach Director of Planning and the South Central Coastal Information Center. The City of Newport Beach Director of Planning, or designee, shall be responsible for reviewing any reports produced by the archaeologist to determine the