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HomeMy WebLinkAboutC-4690 - PSA for Traffic Study at 100-300 West Coast HighwayAMENDMENT NO. ONE TO CND PROFESSIONAL SERVICES AGREEMENT WITH RBF CONSULTING FOR TRAFFIC STUDY FOR THE PROPOSED 100 -300 WEST COAST HIGHWAY PROJECT THIS AMENDMENT NO. ONE TO PROFESSIONAL (K SERVICES AGREEMENT ( "Amendment No. One "), is entered into as of this ](A (I�d. day of r, 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and RBF CONSULTING, a California Corporation whose address is 14725 Alton Parkway, Irvine, California 92618 ( "Consultant "), and is made with reference to the following: RECITALS: A. On November 3, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for Consultant to prepare a Traffic Phasing Ordinance (TPO) traffic study for the proposed Mariner's Pointe Project at 100 -300 West Coast Highway ( "Project "). The Project Applicant, Glenn Verdult, will reimburse the City for the costs associated with the TPO traffic study. B. City desires to enter into this Amendment No. One to reflect additional services not included in the Agreement and to increase the total compensation. 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 of the Agreement shall be supplemented to include the Scope of Services dated February 14, 2011, 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 Sixteen Thousand, Six Hundred Dollars and no /100 ($16,600.00) 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 One Thousand, Eight Hundred Fifty Dollars and no/100 ($1,850.00), without prior written authorization from City. 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. One on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: t B `' " V Leonie Mulvihill Assistant City Attorney ATTEST: Date: r By- 0�� 671y�-�. Leilani I. Brown VV City Clerks rn CITY OF NEWPORT BEACH, A California u icipal corporation Date: .A num Director CONSULTANT: RBF CONSULTING, a California Corporation Date: 31�/1/ By. Bob atson Vice President Date: 3/3k -/I/ By: Douglas J. Klost Executive ice President and Chief Financial Officer Attachment: Exhibit A - Additional Services to be Performed EXHIBIT A G12 o ® . CONSULTING February 14, 2011 Mr. David Keely, P.E. Senior Civil Engineer CITY OF NEWPORT BEACH 3300 Newport Boulevard Newport Beach, CA 92663 Subject: Proposal to Prepare an Existing Plus Project Traffic Analysis Scenario for the Proposed Mariner's Pointe Project Dear David: In accordance with your request, RBF Consulting (RBF) is pleased to submit this proposal to prepare an Existing Plus Project traffic analysis scenario for the proposed Mariner's Pointe project (100 - 300 West Coast Highway) in the City of Newport Beach. RBF will prepare an Existing plus Project analysis scenario for the proposed projectfor the both City of Newport Beach analysis section utilizing the Intersection Capacity Utilization (ICU) analysis methodology, as well as the Caitmns State Highway section utilizing the Highway Capacity Manual (HCM) analysis methodology. Based on applicable agency threshold of significance, the new Existing Plus Project analyses will determine whether the addition of project - generated trips to existing traffic volumes Is forecast to result in a significant traffic impact requiring mitigation. If the results of the analyses indicate the proposed project is forecast to cause a significant impact, mitigation measures will be Identified to eliminate and/or reduce such identified significant Impacts. The Mariner's Pointe Traffic Impact Analysis (RBF Consulting, February 3, 2011) will be updated to include the new Existing Plus Project analysis scenarios. The fee for this scope of work is $1,850. I look forward to the opportunity of continuing to work with you on this project. If you have any questions, please contact me at 949.855.5730 or at bobmatson @rbf.com. Sincerely, /1130 Matson Vice President RBF Consulting PLANNING 171 DESIGN tl CONSTRUCTION 14725 Alton Parkway, Irvine, CA 926 111-2027 a P-0. Sox 57057, Irvine, CA 92619 -7057 •949.472.3505 • Fax 949.330.4130 Offices located throughout California. Arizona & Nevada • www.RBF.00m i _ s PROFESSIONAL SERVICES AGREEMENT WITH RBF CONSULTING FOR TRAFFIC STUDY AT 100 -300 WEST COAST HIGHWAY THIS AGREEMENT FOR PROFES NNAL SE VICES ( "Agreement') is made and entered into as of this day of QV� 2010, by and between the CITY OF NEWPORT BEACH, a Califom a Municipal Corporation ( "City "), and RBF CONSULTING, a California corporation ( "Consultant'), whose address is 14725 Alton Parkway, Irvine, CA 92618 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. Glenn Verdult is planning to convert vacant commercial space located at 100 -300 West Coast Highway into a 28,850 square foot commercial project which consists of 11,000 square feet of restaurant, 5,000 square feet of medical office and 4,850 square feet of retail space. C. City desires to engage Consultant to prepare a Traffic Phasing Ordinance (TPO) traffic study for 100 -1300 West Coast Highway ( "Project'). Glenn Verdult will reimburse the City for the costs associated with the TPO traffic study. 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 Bob Matson. 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 December 31, 2012 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or i i "Services "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the Services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit 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 Fourteen Thousand, Seven Hundred Fifty Dollars and no /100 ($14,750.00) 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 Professional Services Agreement Page 2 limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 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 Bob Matson 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. David Keely, Senior Civil Engineer or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. Professional Services Agreement Page 3 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. B. Provide blueprinting and other Services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all Professional Services Agreement Page 4 claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his duly authorized designee informed on a regular basis regarding the status and progress of the Project, Professional Services Agreement Page 5 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 Coveraqe. 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. Professional Services Agreement Page 6 Any notice of cancellation or non - renewal of all Workers' j 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 one million dollars ($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: 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 no additional obligations on the City nor does it waive any rights hereunder. Professional Services Agreement Page 7 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. 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 Professional Services Agreement Page 8 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 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. Professional Services Agreement Page 9 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. 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: Professional Services Agreement Page 10 Attn: David Keely Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3349 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Bob Matson RBf Consulting 14725 Alton Parkway Irvine, CA 92618 Phone: 949- 472 -3505 Fax: 949 - 472 -8373 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 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 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. Professional Services Agreement Page 11 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. 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. Professional Services Agreement Page 12 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. Professional Services Agreement Page 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: CITY OF NEWPORT BEACH, OFFICE OF THE CITY ATTORNEY A California mun.igip corporation B B: Y Leonie Mulvihill Assistant City Attorney Vol ATTEST: adum, Public Works Dept. CONSULTANT: RBF CONSULTING, a California corporation a- By: �MqA' By: Leilani I. Brown ob Matson City Clerk Vice President By: Dougl s . Fros Ci �Q FGO Exec tiv Vice President and Chief qAR Finan'cidl Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Professional Services Agreement Page 14 �! 11 � i CONSULTING October 5, 2010 Mr. David Keely, P.E. Senior Civil Engineer CITY OF NEWPORT BEACH 3300 Newport Boulevard Newport Beach, CA 92663 Subject: Proposal to Prepare a Traffic Analysis for the Proposed Mariner's Pointe Project Dear David: In accordance with your request, RBF Consulting (RBF) is pleased to submit this proposal to prepare a traffic analysis for the proposed Mariner's Pointe project (100 - 300 West Coast Highway) in the City of Newport Beach. The proposed 20,850 square foot commercial project consists of 11,000 square feet of restaurant, 5,000 square feet of medical office, and 4,850 square feetof retail. The proposed project will displace approximately 5,000 square feet of vacant commercial space currently located on the project site. As you know, RBF is very familiar with traffic conditions and issues in the study area of the proposed project, not only as a result of ourtraffic analysis for the Mariner's Mile project previously proposed on the project site (which withstood legal challenge in court), but in relation to our current traffic analysis of the proposed Orange Coast College Maritime Training Center (OCC MTC) project located less than half -mile west of Mariner's Pointe project site on West Coast Highway (SR -1). SCOPE OF WORK RBF will prepare a traffic impact analysis for the proposed Mariner's Pointe project to support environmental documentation of the proposed project in accordance with the California Environmental Quality Act (CEQA), as well as address the applicable City Traffic Phasing Ordinance (TPO) analysis for the proposed project. Additionally, the traffic analysis will include a State Highway analysis for the study intersections located along Coast Highway (SR -1) under the jurisdiction of Caltrans, as well as include an applicable Orange County Congestion Management Program (CMP) discussion for the West Coast Highway (SR -1) /Newport Boulevard Ramps location. (h Anniversary 14725 Alton Parkway, Irvine, CA 92678-2027 • P.O. Box 57057, Irvine, CA 92619 -7057 • 949.472.3505 • Fax 949.472.8373 Offices located throughout California, Arizona & Nevada a www.RBEcom Mariner's Pointe Traffic Analysis Proposal October 5, 2010 Study Area The study intersections will consist of the following twelve (12) intersections identified by the City: 1. Irvine Avenue /Dover Drive; 2. Irvine Avenue /171h Street; 3. Dover Drive/Westcliff Drive; 4. Dover Drive /16Th Street; 5. Dover Drive /Cliff Drive; 6. Newport Boulevard (SR -55) Southbound Ramps/West Coast Highway (SR -1); 7. Riverside Drive/West Coast Highway (SR -1); 8. Tustin Avenue/West Coast Highway (SR -1); 9. Balboa Bay Club/West Coast Highway (SR -1); 10. Dover Drive/West Coast Highway (SR -1); 11. Bayside Drive /East Coast Highway (SR -1); and 12. Jamboree Road /East Coast Highway (SR -1). This scope of work assumes the City of Newport Beach will provide RBF with a.m. and p.m. intersection movement counts at the study intersections for use in the analysis with the exception the Balboa Bay Club/West Coast Highway (SR -1) intersection and the Dover Drive /16`h Street intersection. RBF has recently collected a.m. and p.m. intersection movement count data at the Balboa Bay Club/West Coast Highway (SR -1) intersection in May 2010 as part of the traffic analysis for the proposed OCC MTC project; if acceptable to City staff, RBF proposes to utilize this count data at this intersection in the analysis for the proposed Mariner's Pointe project; if not acceptable to City staff, RBF will collect new a.m. and p.m. intersection movement count data at the study intersection. As part the analysis, RBF will collect a.m. and p.m. intersection movement count data at the Dover Drive /16th Street intersection for use in the analysis. Analysis Scenarios The analysis will document typical weekday a.m. peak hour and p.m. peak hour study intersection conditions for the following analysis scenarios: 1. TRAFFIC PHASING ORDINANCE ANALYSIS Existing Conditions; Forecast Near -Term Without Project Conditions; and • Forecast Near -Term With Project Conditions. 2. FORECAST CUMULATIVE CONDITIONS ANALYSIS • Forecast Cumulative Without Project Conditions; and • Forecast Cumulative With Project Conditions. OR i Mariner's Pointe Traffic Analysis Proposal October 5, 2010 3. ORANGE COUNTY CONGESTION MANAGEMENT PROGRAM Forecast Cumulative Without Project Conditions; and Forecast Cumulative With Project Conditions. 4. STATE HIGHWAYANALYSIS Existing Conditions Forecast Near Term Without Project Conditions; and Forecast Near Term With Project Conditions. The Traffic Phasing Ordinance (TPO) analysis will assume a trip credit to account for the approximately 5,000 square feet of vacant commercial space currently located on the project site when deriving the forecast trip generation of the proposed project. Forecast trip generation of the proposed project for the TPO analysis will be reviewed and approved by City staff prior to inclusion of the analysis. The Cumulative Conditions analysis, for CEQA purposes, will not assume anytrip credit to related to the approximately 5,000 square foot vacant commercial space currently located on the project site. Forecast trip generation of the proposed project for the cumulative analysis will be reviewed and approved by City staff prior to inclusion of the analysis. While a long -range year study intersection analysis forthe proposed project is not required based on discussions with City staff, the analysis will include a General Plan Amendment (GPA) trip generation analysis comparison between the trips forecast to be generated by the currently permitted 0.50 Floor Air Ratio (FAR) on the project site and the proposed 0.63 FAR for the project site to accommodate the proposed project. Analysis Methodology The analysis will document the existing and forecast operation of the study intersections for the above identified analysis scenarios. The City of Newport Beach and Orange County CMP intersection analyses will utilize the Intersection Capacity Utilization (ICU) analysis methodology; the State Highway intersection analysis will utilize the Highway Capacity Manual (HCM) analysis methodology. The traffic impact study will identify the number of daily and peak hour trips forecast to be generated by the proposed project, using the City of Newport Beach Traffic Analysis Model (NBTAM) trip generation rates, Institute of Transportation Engineers (ITE), Vh Edition trip generation rates, or other source as directed by the City. Potential adjustments to the forecast trip generation, such passer -by and/or onsite trip capture adjustments will be reviewed and approved by Citystaff priorto incorporation into the analysis. The traffic analysis will provide a forecast distribution of project - generated trips. Manual trip distribution and assignment will be reviewed and approved by City staff prior to utilization in the analysis. M I Mariner's Pointe Traffic Analysis Proposal October 5, 2010 Utilizing applicable agency analysis methodology, and based on applicable agency performance criteria and thresholds of significance, RBF will determine whether the proposed project is forecast to result insignificant traffic impacts at the study intersections. Mitigation measures will be identified in accordance with applicable agency criteria to eliminate or reduce identified significant traffic impacts. Site Access The proposed project plans to consolidate the project access locations at West Coast Highway (SR- 1) from the three current right in /right out access locations to two proposed right in /right out access locations. The analysis will review the proposed project site access locations at West Coast Highway (SR -1) and make recommendations as /if necessary to enhance project site access at West Coast Highway (SR -1) and improve traffic flow on westbound West Coast Highway (SR -1). Deliverables This scope of work assumes RBF will prepare a draft traffic impact analysis report for submittal to the City for review and comment. RBF will address the City's review comments and finalize the traffic impact analysis and resubmit to the City. Additionally, this scope of work assumes RBF will provide responses to one (1) round of public comments on the traffic impact analysis report. Meetings This scope of work assumes RBF will attend one (1) kick -off meeting and two (2) public meetings FEE Site Visit & Study Area Existing Systems Documentation $ 1,100 Traffic Analysis /Report $ 8,850 Response to City /Public Comments (assumes 20 hours) $ 2,800 Meetings It Kick -off Meeting & 2 Public Meetings) $2,000 TOTAL FEE $14,750 look forward to the opportunity of working with you again on this project. If you have any questions, please contact me at 949.855.5736 or at bobmatson @rbf.com. Sincerely, ZZ Bob Matson Vice President RBF Consulting NOTE: If additional tasks (meetings, counts, etc.) are required based on direction from the Client, they can be accommodated for a fee in addition to the fee associated with this proposal. All services outlined herein this scope of work will be performed for a fee not -to- exceed $14,750. EXHIBIT B HOURLY RATE SCHEDULE OFFICE PERSONNEL $/ Hr. SeniorPrincipal ................................................................................................. ............................... $245.00 Principal.............................................................................................................. ............................... 225.00 ProjectDirector ................................................................................................... ............................... 215.00 Senior Project Manager ....................................................................................... ............................... 200.00 ProjectManager............................... ......... ... .... .......... ................... .............. ............. .......................... 195.00 StructuralEngineer .................................................................... ............................... .........................195.00 TechnicalManager .............................................................................................. ............................... 180.00 SeniorEngineer .................................................................................................. ............................... 163.00 SeniorPlanner .................................................................................................... ............................... 163.00 ElectricalEngineer .............................................................................................. ............................... 156.00 LandscapeArchitect ............................................................................................ ............................... 150.00 SeniorGIS Analyst .............................................................................................. ............................... 150.00 ProjectEngineer ................................................................................................. ............................... 148.00 ProjectPlanner ................................................................................................... ............................... 148.00 Environmental Specialist..................................................................................... ............................... 138.00 Design Engineer /Senior Designer / Mapper... ........................................................................................ 135.00 GISAnalyst ......................................................................................................... ............................... 122.00 Designer /Planner ....................................................................... ............................... ......................... 118.00 ProjectCoordinator ............................................................................................. ............................... 110.00 GraphicArtist ........................................................................................................ ............................... 97.00 Environmental Analyst/Staff Planner ............................................ ............................... ..........................97.00 DesignTechnician ....................................................................... ............................... ..........................97.00 Assistant Engineer / Planner .......................................................... ............................... ..........................93.00 PermitProcessor .................................................................................................. ............................... 83.00 Engineering Aid/Planning Aid ...................................................... ............................... ..........................75.00 OfficeSupport/ Clerical .......................................................................................... ............................... 63.00 FIELD PERSONNEL 2- Person Survey Crew ...................................................................................... ............................... $245.00 1- Person Survey Crew ........................................................................................ ............................... 155.00 LicensedSurveyor .............................................................................................. ............................... 175.00 FieldSupervisor .................................................................................................. ............................... 172.00 CONSTRUCTION MANAGEMENT PERSONNEL ConstructionManager ....................................................................................... ............................... $185.00 Resident Engineer /Project Manager ..................................................................... ............................... 154.00 Senior Construction Inspector ..................................................... ............................... .........................123.00 ConstructionInspector ......................................................................................... ............................... 118.00 Field Office Engineer .................................................................. ............................... .........................110.00 Construction Technician .............................................................. ............................... ..........................95.00 Note: Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost plus 15 %. A Sub - consultant Management Fee of fifteen- percent (15 %) will be added to the direct cost of all sub - consultant services to provide for the cost of administration, subconsultam consultation and insurance. Vehicle mileage will be charged as an additional cast at 0.60 per mile.