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HomeMy WebLinkAboutC-4574 - PSA for Environmental Consulting Services for the Big Canyon Grading ProjectAMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH PHIL MARTIN DBA PHIL MARTIN AND ASSOCIATES FOR ENVIRONMENTAL CONSULTING SERVICES FOR THE BIG CANYON GRADING PROJECT THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One"), is entered into as of this \ � day of November, 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ("City"), and Phil Martin, doing business as (DBA) Phil Martin and Associates (PMA), a sole proprietorship, whose address is 18551 Von Karmen Avenue, Suite 140, Irvine, California 92612 ("Consultant"), and is made with reference to the following: RECITALS: A. On June 28, 2010, City and Consultant entered into a Professional Services Agreement ("Agreement") for environmental consulting services for the Big Canyon Grading Project ("Project"). B. City desires to enter into this Amendment No. One to reflect additional services not included in the Agreement, to increase the total compensation and update the City's primary contact for the project. 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. SERVICES TO BE PERFORMED Section 2 "Services to be Performed" of the Agreement, shall be supplemented to include the Scope of Services dated November 1, 2010, 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 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 including all reimbursable items and subconsultant fees, shall not exceed Fourteen Thousand Nine Hundred and Sixty Six Dollars and no/100 ($14,966.00) without prior written authorization from City ("Total Amended Compensation"). 2.1 The Total Amended Compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Seven Thousand Two Hundred and Sixty Six Dollars and no/100 ($7,266.00), without prior written authorization from City. 3. ADMINISTRATION Section 6 "Administration" of the Agreement, shall replace Russell Bunim with Makana Nova as the Project Administrator who shall have the authority to act for City under this Agreement. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. One on the dates below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Da 1115 ly By. Leonie Mulvihill / Assistant City Attorney l� ATTEST: Date: By: ON VV\ Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Da Kiff, City Man er CONSULTANT: Phil Martin and Associates, Inc, a sole proprietorship Date�°� as - i c) By: � Phil Martin President Attachments: Exhibit A""`MMonal Services to be Performed Nov 0� 10 09:25a Phil Martin & Associates 7145441964 p.l r) Phil Marfin & Assoclaflei, Inc. Nov ember 2, 2010 Ms. Makana Nova Assistant Planner City of Newport Beach Planning Department P.O. Box 1768 Newport Beach, CA 92658 RE: Big Canyon Subdivision Dirt Import — Contract Amendment Dear Ms. Nova: Phil Martin & Associates is requesting an amendment to its professional services agreement with the City of Newport Beach dated June 28, 2010 in the amount of $7,700. The project applicant proposes to grade and fill a small drainage feature at the northern end of the building pact to increase the size of the pad. The requested contract amendment is for Glenn Lukos Associates to provide regulatory support services pertaining to the evaluation of this small drainage feature to determine if the feature is subject to jurisdiction u7th the U.S. Army Corps of Engineers, California Department of Fish and Game, and/or the California. Regional Water Quality Control Board. In order to determine whether or not the drainage area is within the jurisdiction of the three resource agencies it is necessary for Glenn Lukos Associates to conduct the above work. The cost for Glenn Lukos Associates to complete its scope of work is $6,920. In addition to the Glenn Lukos Assuciatcs fee, I xcqucst an additional 5°/u (,$346) of their fee for coordination effort between the City and Glenn Lukos Associates. The cost of the additional scope of work described above is $7,266 ($6,920 + $346 = $7,266). Phil Martin & Associates is requesting an amendment to its current professional service agreement to add an additional $7,266 resulting in a new professional service agreement total of $14,966. If you have questions or require additional information, please contact me at 714-544-1944 iPhil erelyMartin President 3002 Dow Avenue, Suite 520 + Tustin, CA 92780 + Phone 714-544-1944 + Fax 714-544-1964 PROFESSIONAL SERVICES AGREEMENT WITH PHIL MARTEN DBA PHIL MARTEN AND ASSOCIATES FOR ENVIRONMENTAL CONSULTING SERVICES FOR THE BIG CANYON GRADING PROJECT THIS AGREEMENT is made and entered into as of this _X�Ilay of June, 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and Phil Marten, doing business as (DBA), Phil Marten and Associates (PMA), a sole proprietorship, whose address is 18551 Von Karman Avenue, Suite 140, Irvine, California, 92612 ( "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 considering potential environmental impacts associated with the proposed Big Canyon Subdivision Grading Project. C. City desires to engage Consultant to prepare a negative declaration in accordance with the California Environmental Quality Act for the proposed Big Canyon Subdivision Grading 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 Phil Marten. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM The term of this Ayreement shall commence on the above written date, and shall terminate on the 1 day of June, 2012, unless terminated earlier asset 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 SEVEN THOUSAND, SEVEN HUNDRED DOLLARS AND 001100 ($7,700.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: 2 A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Phil Marten to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by Planning Department. Russell Bunim shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES 3 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 8.9 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, C! 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. 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 5 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, 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 contract 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. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $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 A 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 (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 $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 $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: i. 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 ir1 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 30 days notice of cancellation (except for nonpayment for which 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. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. D 21. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 10 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Russell Bunim Planning Department City of Newport Beach 3300 Newport Boulevard, P.O. Box 1768 Newport Beach, CA 92663 Phone: 949 -644 -3233 Fax: 949 -644 -3229 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Phil Marten Phil Marten and Associates 18551 Von Karman Avenue, Suite 140 Irvine, CA 92612 Phone - 949 - 250 -0503 Fax - 949 - 250 -0512 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of 11 termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at Its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 12 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: ..-4... I ­�z:-r- Leonie Mulvihill;,¢�`� Assistant City Attorney `FFV ATTEST: ' CITY OF NEWPORT BEACH, A Municipal Corporation By: Db3t,6 Kiff City Manager NSULTANT: By. MBy. r Lellani Brown, Phil Marten City Clerk Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Certificate of Exemption F:\USERS\PLN\Shared\Professional Services Agreements & Contracts\Neutra Medical Arts Building\Keeton-Professional Service Agreement 2.docx 13 Ma Phil Martin & dssocioies, Inc. May 26, 2010 Mr. Russell Bumm City of Newport Beach Planning Department P.O. Boa 1768 3300 Newport Boulevard Newport Beach, CA 92658 RE: Big Canyon Subdivision Dirt Import - Proposal to Prepare Negative Declaration Dear Mr. Bunim: Phil Martin & Associates appreciates the opportunity to submit this proposal to prepare a Negative Declaration to import approximately 45,000 cubic yards of dirt from the Newport Beach City Hall site to a residential pad located at 1 Big Canyon Drive, Newport Beach, CA. In addition, the project includes the removal of approximately 40,000 cubic yards of existing dirt from the residential pad and spread approximately 30,000 to 35,000 cubic yards of that dirt on the Big Canyon golf course. Approximately 5,000 to 10,000 cubic yards of "spoils" of the 40,000 cubic yards would be exported and hauled off -site. The 40,000 cubic yards of imported dirt is anticipated to raise the height of the existing residential pad approximately 10-12 feet above its existing pad surface elevation. This proposal includes a detailed scope of work, fixed fee and preliminary schedule to prepare a Negative Declaration for the project SCOPE OF WOli% The following scope of work proposes to update the adopted Big Canyon Subdivision Mitigated Negative Declaration for Parcel Map No. 2008 -111 to address importing approximately 40,000 cubic yards of dirt that will be dumped and spread on an existing vacant residential parcel at 1 Big Canyon Drive, Newport Beach, CA to comply with the California Environmental Quality Act (CEQA). The preparation of the Negative Declaration will rely on project information provided by the project applicant, special studies provided by the City (air quality, noise), Newport Beach General Plan 2006 Update, General Plan 2006 Update EM and City Hall EIP, A. KICK OFF MEETING Upon authorization to proceed and signature of a contract, Phil Martin & Associates will meet with you to discuss the project in derail, finalize a schedule, and confirm the key environmental and community issues. 18551 Von Karman Avenue, Suite 140 ♦ Irvine, CA 92612 • Phone 949- 250 -0503 • Fax 949 - 250 -0512 B. PREPARE NEGATIVE DECLARATION Immediately after the kick -off meeting Phil Martin & Associates will begin preparation of the Negative Declaration. The scope of work will focus on updating the Big Canyon Subdivision Mitigated Negative Declaration to address the removal of approximately 40,000 cubic yards of dirt from the existing residential pad and spread approximately 30,000 to 35,000 cubic yards of the 40,000 cubic yards onto the Big Canyon Golf Course. The rer aning 5,000 to 10,000 cubic yards of "spoils" would be exported off -site. Finally, approximately 40,000 cubic yards of dirt would be imported from the Newport Beach City Hall site and spread onto the residential pad at 1 Big Canyon Drive, Newport Beach, CA and raise the pad by approximately 10-12 feet in height Phil Martin will update the previous Mitigated Negative Declaration m accurately reflect the current project proposal. The Negative Declaration will include a detailed project description, regional and local vicinity maps, preliminary grading plan, aerial photograph depicting the site and surrounding land uses, and surface level photographs of the site and the area immediately surrounding the site. Detailed written explanations similar to the explanations in the current Mitigated Negative Declaration of how each environmental discipline will or will not be impacted by the project will be provided to support the conclusion for each environmental topic. Phil Martin & Associates will incorporate the air quality and noise studies prepared by Mestre Greve Associates and the complete reports will be included in the Negative Declaration appendix. C. MITIGATION MONITORING AND REPORTING PROGRAM - Option If mitigation measures are required to mitigate impacts, a Mitigation Monitoring and Reporting Plan (MlYMP) will be prepared as required by Public Resources Code Section 21081.6. The MMRP will list all recommended mitigation measures and identify the department and contact person with the City that will be responsible to monitor the implementation of each mitigation measure. A City MMRP format will be followed and once completed, submitted to staff for its review. Phil Martin & Associates will incorporate staff changes and submit five copies to staff D. SCREEN CHECK DRAFT NEGATIVE DECLARATION Once the Negative Declaration is completed Phil Martin & Associates will submit five (5) copies of the Screen Check Negative Declaration and one (1) digital copy to staff for review and comment Staff's comments will be incorporated and revisions made to the Negative Declaration to staffs satisfaction and copies printed for distribution. E. PREPARE NOTICE OF INTENT TO ADOPT Phil Martin & Associates will prepare a Notice of Intent to Adopt a Negative Declaration and submit to staff for review. The Notice of Intent to Adopt a Negative Declaration will be submitted along with the Negative Declaration to the various agencies and individuals and filed with the County Clerk. Phil Martin & Associates, in conjunction with staff, will prepare a distribution list The distribution list will include all responsible agencies, trustee agencies, and individuals that will receive a copy of the Negative Declaration as required by CEQA. The Negative Declaration will be mailed to the agencies and individuals on the distribution list City of Newport Beach — Big Canyon Dirt Import Negative Declaration Proposal —June 9, 2010 Page 2 F. PRINT AND MAIL NEGATIVE DECLARATION Phil Martin & Associates will print fifteen (15) copies of the Negative Declaration and produce one (1) digital copy. The copies will be mailed by certified mail to the agencies and individuals on the approved distribution list The remaining copies will be provided to staff for its use_ G. PUBLIC NOTICES It will be the City's responsibility to provide all required public notices in the newspaper of the availability of the Notice of Intent to Adopt a Negative Declaration and any hearing to adopt the Negative Declaration, H. PROJECT COORDINATION AND MEETINGS Phil Martin & Associates has included in the proposal the attendance at two (2) meetings with City staff, including a kickoff meeting and one additional project meeting. I. FILE NOTICE OF DETERMINATION /PAY FISH AND GAME FEE Once the Negative Declaration is adopted, Phil Martin & Associates will submit a Notice of Determination (NOD) to staff for signature. Phil Martin & Associates will file the NOD with the County Clerk as required by Section 15094 of the CEQA Guidelines the day after the project is approved. In conjunction with filing the NOD with the County Clerk, the City will be required to pay a Fish and Game Fee. At this time we feel the project will not have any significant adverse impacts to biological resources. As a result, we will submit a CEQA Filing Fee No Effect Determination Form to Region 5 of the California Fish and Game for their determination whether or not the project will impact fish and wildlife resources. If successful, payment of the Fish and Game fee for preparation of the Negative Declaration will not be required. However, if the Department of Fish and Game determines the project will have an impact to fish and wildlife resources, we will request a check from the City of Newport Beach to pay the Fish and Game fee at the time the NOD for a Negative Declaration is filed with the County Clerk. Once the NOD is filed there is a 30 -day statute of limitation period the public has to file legal challenges to the Final Negative Declaration. J. FEE The fixed fee for Phil Martin & Associates to complete the above scope of work is $7,700.00. This fee includes the preparation of the Negative Declaration, printing and mailing costs, attend two staff meetings, and file the Notice of Determination with the County Clerk. A breakdown of the cost is shown below. Negative Declaration Fee Breakdown Declaration City of Newport Beach — Big Canyon Dirt Import Negative Declaration Proposal —June 9, 2010 Page 3 K. PRELIMINARY PROJECT SCHEDULE Phil Martin & Associates is prepared to meet the following preliminary schedule based upon the timely receipt of all technical reports from the City and timely screen check reviews by staff. • Start Date/Kick-off meeting— June 1, 2010 • Submit Screen Check Negative Declaration to staff— June 10, 2010 • Receive staff comments to Screen Check Negative Declaration —June 15, 2010 • Negative Declaration public review start — June 17, 2010 • End of 21 -day public review period —July 7, 2010 • City approval —July 2010 • File Notice of Determination —July 2010 L. PAYMENT Phil Martin & Associates will submit monthly invoices for work completed the previous 30 days. Invoices shall be paid within 30 days from the invoice date for additional work to continue. M. DELIVERABLES Phil Martin & Associates will provide the deliverables identified in the above scope of work and summarize below: • Screen Check Negative Declaration — 5 hard copies and 1 electronic copy • Print Negative Declaration —15 hard copies and 1 electronic copy • Notice of Intent to Adopt -1 copy • Notice of Determination - 1 copy N. NEEDED INFORMATION • Air quality report and noise assessment O. EXCLUSIONS AND PROPOSAL LIMITATIONS This proposal does not include any scope of work that is not specifically identified in the above proposal Limitations: This proposal is based on a reasonable schedule and the scope of work set forth herein. Changes in the schedule or scope of work assumptions may result in costs beyond those currently anticipated. Major changes include, but are not limited to: 1. Changes in the project by the City, which cause revisions of printed documentation of plans beyond those coveted by the scope of work. 2. Changes in the project, accepted by the City, which cause revisions of the printed documentation or plans or additional processing beyond that covered by the scope of work. 3. Changes in the schedule by the City beyond the parameters set forth in this proposaL 4. Expansion of the area of study or regulatory activity by the City. 5. Additional planning entitlements, permits, or recordation of maps. City of Newport Beach — Big Canyon Dirt Import Negative Declaration Proposal —June 9, 2010 Page 4 6. Appeal of project determination (eg. project approval or denial) by a public agency, other groups, or organizations. If one or more of the above incident occurs, Phil Martin & Associates shall be entitled to negotiate a contract amendment Actual contract authorization date may cause recisions to the project schedule Lengthier review periods by the Client or delays for redesign or negotiations, entitle Phil Martin & Associates to re- examine the contract to determine if the costs incurred with the delays can be accommodated in the fee If any of the changes described herein occur, Phil Martin & Associates shall inform the City in writing of the status of the proposal. If you have questions or require additional information, please contact me at 949 - 250 -0503. sincerely, Phil Martin President City of Newport Beach — Big Canyon Dirt Import Negative Declaration Proposal —June 9, 2010 Page 5 CITY OF NEWPORT BEACH CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE I hereby certify that in the performance of the work for which this Agreement is entered into, I shall not employ any person in any manner so as to become subject to the Workers' Compensation Laws of the State of California_ Executed on thOs day of `�V -- , 2010, at Newport Beach, California..