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HomeMy WebLinkAboutC-5038 - PSA for Regulatory and Biological Support Services for the Sunset Ridge Park' AMENDMENT NO. TWO TO V PROFESSIONAL SERVICES AGREEMENT WITH PSOMAS DBA BONTERRA PSOMAS FOR REGULATORY AND BIOLOGICAL SUPPORT SERVICES FOR THE SUNSET RIDGE PARK THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 30th day of May, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and PSOMAS, a California corporation, doing business as ("DBA") BONTERRA PSOMAS, a California corporation ("Consultant'), whose address is 2 Executive Circle, Suite 175, Irvine, CA 92614, and is made with reference to the following: RECITALS A. On January 18, 2012, City and BonTerra Consulting ("BonTerra") entered into a Professional Services Agreement ("Agreement') to provide biological and regulatory technical support services as part of the Coastal Development Permit ("CDP") processing activities with the California Coastal Commission for the Sunset Ridge Park Project ('Project'). B. On March 26, 2013, City and BonTerra entered into Amendment No. One to the Agreement ("Amendment No. One') to extend the term of the Agreement, reflect additional services not included in the Agreement, increase the total compensation and update the insurance requirements. C. On December 23, 2013, BonTerra notified the City that it had merged with Psomas, a California corporation, and intended on transferring its obligations under the Agreement as amended to Consultant, a California corporation. The City consented to the notice of transfer. D. City desires to enter into this Amendment No. Two to reflect additional services not included in the Agreement and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Work and Fees dated May 21, 2014, attached hereto and incorporated herein by reference as Exhibit A ("Services" or "Work'). The City may elect to delete certain Services within the Scope of Services at its sole discretion. 2. COMPENSATION TO CONSULTANT Section 4 of the Agreement is 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, the Scope of Work and Fees dated May 14, 2014 attached hereto as Exhibit A 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 Two Hundred Twenty Nine Thousand Eight Hundred Thirty Dollars and 00/100 ($229,830.00), 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." The total amended compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. Two, including all reimbursable items and subconsultant fees, in an amount not to exceed Forty Five Thousand Three Hundred Eighty Five Dollars and no/100 ($45,385.00), without prior written authorization from City. 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] BonTerra Psomas Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: -51,11 ( q Aaron C. Harp City Attorney ATTEST: /- Date: By: Ac 4w- 6�42� Leilani I. Brown City Clerk Attachments ti U CITY OF NEWPORT BEACH, a California municipal corporation Date: (v\ !3.N ly By: Dave City Manager CONSULTANT: PSOMAS, a C corporation D B � T rra Psomas Date: 0 alifornia By: Y Ann M. Johnston [END OF SIGNATURES] Exhibit A - Scope of Work and Fees dated May 21, 2014 BonTerra Psomas Page 3 EXHIBIT SCOPE OF WORK AND FEES DATED MAY 213 2014 BonTerra Psomas Page A-1 May 21, 2014 Mr. Andy Tran, P.E. Senior Civil Engineer City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Balancing the Natural and Built Environment VIA EMAIL atran@newportbeachca.gov Subject: Contract Augment (Proposed Amendment No. 2) Request for Monitoring; Fossil Salvage, Analysis, Reporting, and Curation at Sunset Ridge Park, Newport Beach Dear Mr. Tran: This Scope of Work and Budget Augment Request (Proposed Amendment No. 2) is being submitted to the City of Newport Beach for (1) additional paleontological resources construction monitoring services and (2) the processing, identification, analysis, and curation in perpetuity of fossils recovered during monitoring of grading for the Sunset Ridge Park project. Patrick Maxon is the Project Manager for this scope of services. He meets the Secretary of the Interior's professional standards for Archaeology (36 Code of Federal Regulations [CFR] 61); is a Registered Professional Archaeologist (RPA); and is a certified Archaeologist in the County of Orange. Mr. Maxon has 20 years of professional cultural resources management experience in Southern California. BonTerra Psomas and Mr. Maxon have completed numerous projects in the City of Newport Beach over many years, including recent work for the Newport Banning Ranch and Sunset Ridge Park projects. Attachment A describes the Scope of Work and Fees for the additional work needed to complete cultural and paleontological resources studies at Sunset Ridge Park. We have enjoyed working with the City on this project and look forward to completing our work in a timely, scientifically rigorous, and budget conscious manner. Please do not hesitate to contact Patrick Maxon at (714) 444-9199 or pmaxon@psomas.com should you have any questions regarding the scope and/or the anticipated fees. We can begin work upon written authorization to proceed. Sincerely, BonTerra Psomas Da a C. P - t, AICP Vice President, Environmental Planning Attachments: A — Scope of Work and Fees R\Projects\Ne orfU0231S0Ws\SOW Sunset Ridge Fossil-052114.doo, Pafc.V-(OaM.A.,RPA Director, Cultural Resources Executive Dizle SG,te 176 Irnce. OA 92614 TO 714 444 9199 Pax 714 444.9599 . ,, Psomas.com Sunset Ridke Park ATTACHMENT A PALEONTOLOGICAL SERVICES PROPOSED AMENDMENT NO. 2 SCOPE OF WORK AND FEES FOR THE SUNSET RIDGE PARK PROJECT May 21, 2014 BonTerra Psomas began monitoring rough grading activities at Sunset Ridge Park in January, 2014, pursuant to the requirements of the Sunset Ridge Park Project Environmental Impact Report (EIR) Mitigation Measure (MM) 4.7-2. Monitoring activities were concluded at the end of March, 2014. Our initial (negative findings) monitoring budget was expended at the end of February. At the direction of the City, we continued to monitor as needed in March. Early in the project we began to identify and recover fossils from the Quaternary Marine Terrace deposits (Pleistocene shell beds) of the Palos Verdes Sands Formation, which we anticipated would be impacted during grading. The monitor initially dry -screened, then, when a mechanical screening machine became available, water -screened bulk sediment samples of the shell beds and other fossil bearing layers (about 6,000 pounds) that were collected during the monitoring on-site. This on-site screening reduced the bulk amount of material to be stored and analyzed and minimized the amount of screening and sorting that would need to be done in the laboratory. The remaining sediment samples have been taken to the BonTerra Psomas laboratory for further processing, identification, and analysis as required in Mitigation Measure 4.7-2. This augment request is in two parts: Part I covers the additional monitoring requested of BonTerra Psomas; Part II includes the tasks that must be completed to adequately evaluate and treat the important paleontological specimens collected during the project. These tasks include (1) sorting of the screened matrix; (2) liquid separation of very fine sands and fossils; (3) chronometric dating of selected samples; (4) formal identification of all recovered fossils; (5) drafting stratigraphic sections for the final report; (6) development of a locality map depicting fossil find locations; (7) preparation of a final monitoring and salvage report; and (8) curation tasks and fees. The remainder of this Scope of Work and augment request describes each of these tasks in more detail: PART 1 MONITORING The Sunset Ridge Park Project EIR MMs 4.7-1 and 4.7-2 require archaeological and paleontological monitoring as necessary in sensitive sediments. Because of the potential for the presence of cultural resources on the park site and because the project site is highly sensitive paleontologically, BonTerra Psomas conducted archaeological and paleontological monitoring during all grading and earth -moving activities that impacted the alluvial materials at the surface and the rock units below. These rock units consist of multiple horizons of Pleistocene age marine terrace deposits named the Palos Verde Sands. These deposits contain a multitude of marine shells and are some of the last such exposed beds in Orange County. The initial monitoring budget of 240 hours was exceeded at the conclusion of the week ending February 28, 2014. To fully comply with the requirements of the FIR, additional grading monitoring was required. This included three additional weeks of full-time and two weeks of part time monitoring, for a total of 114 additional hours of monitoring and 40 hours of Project Management and Field Director time. Also included in Part 1 are direct expenses incurred during salvage of fossils, including additional mileage, rental of a screening machine, generator rental, trailer rental to transport screening machine, and fossil salvage supplies including glue, acetone, paint, and tarps. RAProjecM%Ne onU0M$0Ws\S0W Sunset Ridge Fossil-052114.dccx A-1 Scope of Work and Fees Paleontological Services Sunset Ride Park PART II FOSSIL ANALYSIS Task 1: Sorting During paleontological monitoring of the site, over 6,000 pounds of sediment from 12 different beds or levels was collected. Many of these beds were fossil shell horizons, but a few horizons yielded bones and teeth of large extinct land mammals (e.g., bison, possibly camel, and horse). All of these sediments must be water screened during grading activities through 30 mesh openings per inch screens in a mechanical screening machine to remove the finer clays, silts, and sands. The dry concentrate (approximately 1000 pounds) of sand and gravel then must be further dry screened through 2, 4, 8, 12, 20, and 30 mesh openings per inch screens to sort the samples by size. Most of this screening was done on-site during monitoring operations and thus much of the screening labor was completed during the monitoring day, saving time that would have had to be expended in the laboratory. These various remaining fractions of the screened sample, collected in buckets, must be picked or scanned by eye or with the use of a binocular microscope to recover the fossils. This will be completed in the BonTerm Psomas laboratory. Additional time is associated with collecting, screening, storing, and removing fossils—some of which included assistance of the Field Director—are included in this task. Task 2: Liquid Separation The J.D. Cooper Center for Archaeology and Paleontology, the County of Orange repository that will house this collection, states in its policies for accepting collections that, "Fossiliferous matrix must be washed and processed". And further that "[e]xcess matrix must be removed and specimen blocks must be reduced to their smallest manageable size. For micro -vertebrates, bulk samples or unscreened matrix will not generally be accepted..." To that end, approximately 370 pounds of very fine sand (20-30 mesh), which contains small mollusks (i.e., clams and snails), shark, ray and bony fish teeth and bones, and bones and teeth of small land mammals and other vertebrates must be sorted. Because of the small grain size and large amount of material, it would take an inordinate amount of time to sort by eye or with the aid of binocular microscope, but it can be immersed in a heavy liquid which will cause the lighter minerals, quartz and feldspar, (which make up about 95 % of the very fine sand) to float and will cause the heavier bones, teeth, and shells to sink to the bottom. This method will more quickly process the samples than picking by hand and will save substantial time and money. Task 3: Absolute Dating Obtaining an absolute date for the deposits is necessary to verify the age of the geology and the fossils within it. Most of the fossils collected from Sunset Ridge Park are from the marine Palos Verdes Sand which is thought to be about 120,000 years old and is too old for conventional dating like Carbon 14. Therefore, an alternate dating method—thermoluminescence—is proposed, which can be used to date much older sites. From the shell -bearing horizons, we would submit two sediment samples (Palos Verdes Sand) for dating to the Institute for Integrated Research in Materials, Environments, and Society at California State University, Long Beach. Task 4: Fossil Identification All the fossils will be identified to species level if possible. We have experts in identification in the fields of marine mollusks (i.e., clams and snails), fish, sharks, and terrestrial vertebrates. Task 5: Stratigraphic Sections The property is like a layer cake; there are a number of distinct sedimentary beds consisting of fossil shell horizons, oyster beds, old beach and lagoonal deposits, and offshore sediments. The paleontological monitor measured the thickness and extent of these beds in a stratigraphic sequence from bottom to top while in the field. These measured sections, which show the vertical relationships of the sedimentary beds, will be drafted for the final report. R?PmIes15lNe0i1.1023\S0WS%S0W Sunset Ridge Foss11-052114.dacx A-2 Scope of Work and Fees Paleontological Services Sunset Ridge Park Task 6: Locality Mau and Fossil Site Record Forms A locality map showing the locations of the fossil sites and site record forms for the individual sites and fossils will be prepared for the final report. Task 7: Report A final report summarizing the field methods (monitoring of earth -moving activities, fossil salvage, and fossil treatment), the results of the monitoring (geology, paleontology, and stratigraphy of the park), and the results of the laboratory identification and analysis of the recovered fossils will be prepared. Task 8: Transfer and Curation of Fossils With the City's permission, the entire collection of fossils with the field notes, photographs, and maps would be transfer to the OC Parks John D. Cooper Center for Archaeology and Paleontology, Santa Ana. The Cooper Center does not yet charge for the Curation itself, but does included fees for the cabinets and drawers that must be purchased by the repository to store the curated materials. We estimate one cabinet and ten drawers will be needed to house the collection. TOTAL REQUESTED AUGMENT $45,385.00 R:Wolec s\N a ortW02MSOWsWW Sunset Ridge Fossil-052114.dmx A-3 Scope of Work and Fees Paleontological Services CIO C G N S U L 7) N G v ) December 23, 2013 Mr. Andy Tran City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Subject: Letter of Transfer of Project Dear Mr. Tran: 2 ExecufNe Crcle. Svlte 175 Irvine, CA 92614 T: (714) 444-9199 f: (714) 444-9599 I w,w.Bo,TerroCoowlVng.com. As we have discussed, BonTerra Consulting, LLC ("BonTerra") has decided to become part of the Psomas family. As part of that decision, all of BonTerra's owners will be accepting an employment position with Psomas and our company name will change to BonTerra Psomes. With over 400 employees in 3 states, Psomas is a leading consulting company and was ranked #14 by Engineering News Record of the top design firms in California for 2012. BonTerra currently has a contract with the City of Newport Beach dated March 26, 2013 (the "Contract"), to provide biological services on the Sunset Ridge Park project. In an effort to ensure that the City of Newport Beach continues to receive high quality services on this project, BonTerra wishes to transfer or assign the Contract ("Transfer"), including its position and obligations on the Contract to BonTerra Psomas. BonTerra Psomas will fully assume all of BonTerra's rights, duties, obligations and responsibilities under the Contract. Further, attached is a Certificate of Insurance from BonTerra Psomas, evidencing our insurance coverage for the project. Your consent to this will confirm that such insurance satisfies your requirements for the project Consistent with the terms of the agreement, BonTerra and Psomas are requesting that the City of Newport Beach consent to such Assignment or Transfer and to accept BonTerra Psomas in place of BonTerra for all future services to be provided. Please be assured that the specific project personnel assigned to your project should remain the same. Please indicate your consent to this by having an authorized representative sign below. Upon your approval and pursuant to this letter, the above Contract will be deemed assigned effective on the closing date of the merger which is expected to occur December 31, 2013, ENVIRONMENTAL PLAt4NING I k2 Ot1RGE MANACEMEPIi Mr. Andy Tran December 23, 2013 Page 2 Thank you for your cooperation in this matter. BonTerra Psomas looks forward to continuing to meet or exceed your needs on this project. Best Regards, Bor Terra Consulting, LLC Joan Patronite Kelly, AICP Managing Principal So Agreed: City ofN port Beach n PJ, Signature Print Name/Title Attachment: Certificate of Insurance W-9 Form R )Assignments\Ann',Transler Leller_Newport J023.docx Psomas Blake Murillo, PE, ENV SP, LEED AP CEO APPROVED AS TO FO '�A i<ty- Attorney y Aftest —JLAL;—� City Cterk ®�OR14 Us IN R .� .Y{ F THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the PRODUCER Dealey, Renton & Associates O. 0. Box 10550 Tanta Ana CA 92711-0550 �9 PSOmaS I Flower Street, Suite 4300 as CA 90071 COVERAGES CERTIFICATE NUMBER: 1737399295 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED 70 THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTR TYPE OF INSURANCE POUCYNUMBER POLIICYEFF POLICY _ LIMITS S GENERAL UnBRRY Y Y 30286M676A 011512013 OIIW014 EACHOCCURRENCE IT 0000DO . 0 =M=GENERAL LANLIW CAIMM� OCCUR MEDEXP $$116,40 PERSONALhADVINJURY 51,000,0 x N: _ x I SFPD, XCU GENERAL AGGREGATE $2000000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS.COMP/OPAOG $2,000000 $ POLICY X PRO- LOC B AUTOMOBILE LIABILITY Y Y 810265M676A - 10/1112013 0/1812014 Ea t 1000000 BODILY INJURY(Por psAM) $ XANY AUTO BODILY INJURY (Per ecatloM) $ ALL OWNED SCHEDULED AVID$ AUTOS X HIRED AUTOBx BOTOS�ED PRROPERTY DAMAGE $ e UMBRELLA UAB x OCCUR EX26SM676A 611520130115121014 EACH OCCURRENCE 55,0,N)POO AGGREGATE 55.000.000 EXCESS LIDS CLAIMS -MADE DEO....I I RETENTION I Prafes5bna) Llab $Is Excluded B WORKERS COMPENSATION AND EMPLOYER$' LIABILr1Y ANYPROPRIETOWPAAiNER/EXESAJTIVE YIN OFFICER+MEMBER EXCLUDED? Y US6A628643 NIA Oft 6/2013 1011W204 X WC STATU- OTH- EA.EACHACCIDENT $1A00,000 (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $1,000,D00 E.L. DISEASE -POLICY LIMIT $10W000 IfyBB dewxlbo under DESCRIPTION OF OPERATIONS below Professional Liability Y 23638381005 0/152013 1011512014 Per Claim $2,000,000 Claims Made, Including Annual Aggregate $2,000.000 Contractors Pullutign DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (AIMoh ACORD 101, Addklonel Ranvke Schedule, N m Ipsco Ie mqubad) General Liability policy excludes claims arising out of the performance of professional services. Independent Contractors Included as respects to General Liability. 30 Day Notice of Cancellation Certificate holder Is additional insured for General Liability, Auto Liability and Excess Liability with respects their Interest in the operations of he named Insured. General Liability is primary and nan-contributory. Waiver of subrogation applies to all coverage lines. CERTIFICATE HOLDER CANCELLATION 10 DaV notice for Non-Pavmnt of Prem 0 1988-2010 ACORD CORPORATION, All rights reserved. ACORD 25 (2014415) The ACORD name and logo are registered marks of ACORD - SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN CITY OF NEWPORT BEACH -CITY MANAGERS OFFICE ACCORDANCE WITH THE POLICY PROVISIONS. 3300 NEWPORT BLVD, NEWPORT BEACH CA 92662 AU)HORIZED REPRESENTATIVE Q OJLLM.. 4 r 1Oq 0 1988-2010 ACORD CORPORATION, All rights reserved. ACORD 25 (2014415) The ACORD name and logo are registered marks of ACORD - AMENDMENT NO ONE TO PROFESSIONAL SERVICES AGREEMENT WITH BONTERRA CONSULTING FOR REGULATORY AND BIOLOGICAL SUPPORT SERVICES FOR THE SUNSET RIDGE PARK THIS AMENDMENT NO ONE TO AGREEMENT FOR PROFE SERVICES ("Agreement") is made and entered into as of this)- _Wday of 2013 ("Effective Date,") by and between the CITY OF NEWPORT BEACH, a if n ia Municipal Corporation ("City"), and BONTERRA CONSULTING, a California =M ("Consultant"), whose address is 2 Executive Circle, Suite 175, Irvine, CA 92614 and is made with reference to the following: RECITALS A. On January 8, 2012, City and Consultant entered into a Professional Services Agreement ("Agreement") for Provide biological and regulatory technical support services as part of the Coastal Development Permit (GDP) processing activities with the California Coastal Commission for the Sunset Ridge Park. ("Project"). B. City desires to enter into this Amendment No. One to reflect additional services not included in the Agreement, to extend the term of the Agreement to December 31, 2019, to increase the total compensation and to update insurance requirements, C. City and Consultant mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section I of the Agreement is amended in its entirety and replaced with the following: The term of this Agreement shall commence on January 8, 2012, and shall terminate on December 31, 2019 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services dated December 12, 2012, attached hereto and incorporated herein by reference as Exhibit A ("Services" or "Work"). The City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be supplemented to include the Schedule of Billing Rates or Progress Payments Schedule attached hereto as Exhibit B, and incorporated herein by reference. Section 4 of the Agreement is 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 or Progress Payments Schedule attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Eighty Four Thousand Four Hundred Forty Five Dollars and 001100 ($184,445.00) 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. INSURANCE Section 14 of the Agreement is amended in its entirety and replaced with the following: Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 5. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] BONTERRA CONSULTING Page 2 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RNEY'S OFFICE Date: 112 By: 7 K___111 Aaron C. Harp City Attorney ATTEST: _ Date: /A " A - By: MON, .,&w— Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Keith Curry Mayor CONSULTANT: BONTERRA CONSULTI G, a California cet Date: kAL-� _,,Joan P. Kelly I- Chief Financial Officer/Chief Officer Date:—,--,-7- By: ate:,--,-7- By: Om��- Ann M. Johnston Principal [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services dated December 12, 2012 Exhibit B - Fee Estimate Exhibit C - Insurance Requirements documentl BONTERRA CONSULTING Page 3 EXHIBIT A SCOPE OF SERVICES DATED DECEMBER 12, 2012 BONTERRA CONSULTING Page A-1 Sunset Ridoe Park ATTACHMENT A SCOPE OF WORK BIOLOGICAL SERVICES SUNSET RIDGE PARK PROJECT SITE December 12, 2012 TASK 1 LIGHTING PLAN REVIEW In compliance with Coastal Development Permit (CDP) Special Condition Number 4, BonTerra Consulting will review the project's proposed Lighting Plan to determine its compliance with CDP requirements. A qualified Biologist will assess whether outdoor lighting is appropriately shielded and oriented in a manner that prevents light spillage onto adjacent environmentally sensitive areas or skyward and whether it generally minimizes impacts to adjacent biological resources. This task includes coordination (via phone and email) with the City and the lighting engineer regarding the plan and any recommended plan revisions. A brief Letter Report that summarizes the findings, including any recommended plan revisions, will be provided to the City of Newport Beach. This Scope of Work assumes one version of the letter report will be submitted to the City of Newport Beach. BonTerra Consulting will submit the final Letter Report in .pdf format to the City for in-house use and subsequent submittal to the resource agencies. Note that this task does not include monitoring of the lighting's effect on wildlife species following construction. TASK 2 PRE -CONSTRUCTION SENSITIVE SPECIES AND NESTING BIRD SURVEYS In compliance with CDP Special Condition Number 7(1) and (4), and Mitigation Measures (MMs) 4.6-1 and 4.6-2 from the Sunset Ridge Park Project Mitigation Monitoring and Reporting Program (BonTerra Consulting 2010), if construction activities are scheduled to occur during the nesting bird season (generally February 15 through August 31; February 1 through August 31 for raptors), BonTerra Consulting will conduct pre -construction surveys for sensitive bird species (including nesting birds and raptors). Pre -construction surreys will be conducted before any construction activities having the potential to impact active nests occur within the 100 -font setback along the western property boundary or adjacent to preserved habitat along the southern boundary. Disruptive activities are defined as any activity that physically removes and/or damages vegetation or habitat or any action that may cause disruption of nesting behavior (e.g., loud noise from equipment and/or artificial night lighting). Nesting bird surveys will be conducted weekly by a qualified Biologist, beginning no earlier than 30 days and ending no later than 3 days prior to the commencement of disturbance; the survey conducted 7 days prior to the start of construction will include a general survey to determine the presence or absence of any special status species and nesting raptors/burrowing owls. The surveys will be conducted during appropriate weather conditions (generally between dawn and 11:00 AM). The Biologist conducting the survey will have the appropriate 10(a) permit and/or experience to survey for coastal California gnatcatcher, burrowing owl, and nesting raptors. The locations of any nesting birds observed will be plotted on an aerial photograph. If the Biologist finds an active nest/burrow in or adjacent to the construction area and determines that the nest/burrow may be impacted, the Biologist will identify an appropriate buffer zone around the nest/burrow depending on the sensitivity of the species and the nature of the construction activity. If an active nest is observed in or immediately adjacent to the proposed work area, project construction will be delayed until the nest is no longer active, as determined by the Biological Monitor. ft:WrcjacisWewpontt0231Proposatl5 0,.A 1 IZdac AA Scope of Work The results of this survey effort, including recommendations for the establishment of protective buffers and performance of additional surveys (based on survey results), will be described in a brief Memorandum submitted to the City for distribution to the appropriate resource agencies, This Scope of Work assumes one version of the memo will be submitted to the City of Newport Beach, BonTerra Consulting will submit the final Memo in .pdf format to the City for in-house use and subsequent submittal to the resource agencies. Any special status species observed during the pre -construction surreys will be reported to the California Department of Fish and Wildlife's (CDFVVs, formerly California Department of Fish and Game) California Natural Diversity Database (CNDDB). This Scope of Work does not include additional surveys of any sensitive species that are identified in preserved areas. TASK 3 CONTRACTOR MEETINGS/COORDINATION Prior to initiating project construction within the 100 -foot setback for preserved areas on the western site boundary and construction adjacent to preserved areas along the southern boundary, the Monitoring Biologist will meet on site with the Construction Manager and/or other individual(s) with oversight and management responsibility for the day-to-day activities on the construction site to discuss implementation of the relevant avoidance/minimization/mitigation measures. The Biologist will meet as needed with the Construction Manager (e.g., when new crews are employed) to discuss implementation of the measures. This Scope of Work assumes up to three meetings with construction personnel. TASK 4 CONSTRUCTION MONITORING BonTerra Consulting will provide a Monitoring Biologist during construction within the 100 -foot setback for preserved areas and adjacent to preserved areas along the southern boundary that may contain sensitive biological resources (e.g., coastal California gnatcatcher, nesting birds, or raptors). The Biologist will possess the necessary federal permit for coastal California gnatcatcher. The Biologist will ensure that indirect impacts on special status species and nesting birds/raptors are avoided to the fullest extent practicable. Where appropriate, the Biologist will flag the boundaries of areas where activities need to be restricted with orange snow fencing or the use of lath and ropes/flagging. These restricted areas will be monitored to ensure their protection during construction. If non -listed sensitive resources are found in the project impact area, the Biologist will relocate the individual out of the project impact area. If listed species are found in the impact area, only a Biologist with the appropriate permit to handle that species will relocate the individual. If the Biologist finds an active nest in or adjacent to the construction area and determines that the nest may be impacted, the Biologist will identify an appropriate buffer zone around the nest depending on the sensitivity of the species and the nature of the construction activity. The active site will be protected until nesting activity has ended, as determined by a qualified Biologist, To protect the nest site, the Biologist will establish clearing limits within a buffer around the nest, and access and surveying will be restricted within the buffer unless otherwise determined by the qualified Biologist. This buffer will be demarcated with flagging or fencing. Construction and/or encroachment into the buffer area around a known nest will only be allowed if the Biologist determines that the proposed activity would not disturb the nest occupants. A weekly Summary Memo will be prepared to document compliance with permit conditions and to report details on any observed special status species, including coastal California gnatcatcher. Upon completion of the survey effort, a brief Final Memo will be prepared summarizing any nest avoidance measures implemented and the success of such measures. This Scope of Work assumes one version of the weekly Summary and Final memos will be RAPrajeCWNe,pm'JMTMPa a SOW Sm-121212.dm A-2 Scope 0f Work Sunset Ridge Part( Project submitted to the City of Newport Beach. BonTerra Consulting will submit the weekly Summary memos and Final Memo report in .pdf format to the City for in-house use and subsequent submittal to the resource agencies. Any special status species observed during the pre -construction surveys will be reported to the CDFW's CNDDB. This Scope of Work and Fee Estimate assumes that the maximum duration of construction activities within the 100 -foot setback (between February 1 and August 31) along the western project boundary and construction adjacent to preserved areas along the southern boundary will be 20 working days. TASK 5 HUMAN INTRUSION MONITORING PLAN BonTerra Consulting will develop a Human Intrusion Monitoring Plan that provides guidelines for assessing human intrusion into preserved native habitat on and immediately adjacent to the project site. This Monitoring Plan will discuss methods for quantifying the level of human intrusion over the course of five years and for assessing the effectiveness of preventative measures for reducing human intrusion into sensitive habitat areas. This Scope of Work includes two rounds of minor document revisions, including minor text clarifications; correction of erroneous information; minor refinements to proposed implementation methodologies; and minor updates to exhibits. BonTerra Consulting will submit the final Monitoring Plan in .pdf format to the City for in-house use and subsequent submittal to the resource ageneses. This Scope of Work does not include implementation of the Monitoring Plan. TASK 6 DOMESTIC/FERAL CAT MONITORING AND EXCLUSION PLAN BonTerra Consulting will develop a Domestic/Feral Cat Monitoring and Exclusion Plan that provides guidelines for assessing and controlling domestic/feral cat predation on the coastal California gnatcatcher in consultation with the CDFW and the U.S. Fish and Wildlife Service (USFWS). The Plan will discuss methods for quantifying the presence of domestictferal cats and degree of usage in sensitive habitat areas. Methods such as visual surveys, scent stations, brushed track pads, camera stations, and trap/mark/recapture will be evaluated. The Plan will also include guidelines for humanely excluding cats from the project site and humanely controlling cat predation of nests on the project site. This Scope of Work includes two rounds of minor document revisions, including minor text clarifications; correction of erroneous information; minor refinements to proposed implementation methodologies; and minor updates to exhibits. BonTerra Consulting will submit the final Domestic/Feral Cat Monitoring and Exclusion Plan in .pdf format to the City for in-house use and subsequent submittal to the resource agencies. This Scope of Work does not include implementation of this Monitoring and Exclusion Plan. TASK 7 BROWN -HEADED COWBIRD MONITORING AND TRAPPING PLAN Task 7A Monitoring and Trapping Plan BonTerra Consulting will develop a Brown -Headed Cowbird Monitoring Plan that provides guidelines for assessing and controlling brown -headed cowbird nest parasitism on the coastal California gnatcatcher in consultation with the CDFW and the USFWS. The Monitoring Plan will Include specific recommendations for a humane trapping program to minimize the incidence of cowbird parasitism on gnatcatcher nests and methods to assess the effectiveness of cowbird - control measures. This Scope of Work includes two rounds of minor document revisions, including minor text clarifications; correction of erroneous information; minor refinements to a;Wroj®cts�NewponVa2av=rcposx�isory am121217acc A-3 Scope of Work Sunset Ridge Park Project proposed implementation methodologies; and minor updates to exhibits. BonTerra Consulting will submit the final Brown-Fleaded Cowbird Monitoring and Trapping Plan in .pdf format to the City for in-house use and subsequent submittal to the resource agencies. Task 7B Implementation of Trapping Plan BonTerra Consulting will implement a five-year trapping program for brown -headed cowbirds. The purpose of the trapping program will be to reduce the prevalence of nest predators on the project site in order to reduce potential impacts on the coastal California gnatcatcher. The proposed budget for this task is provided on a per year basis and consists of continuous monitoring between March 15 and July 15. An Annual Report will be prepared to document the results of the trapping program. This Report will be submitted to the City of Newport Beach and the Wildlife Agencies. Any special status species observed will be reported to the CDFW's CNDDB. TASK 8 REGULATORY SUPPORT SERVICES BonTerra Consulting will continue to coordinate with the Regional Water Quality Control Board (RWQCB) and the CDFW as part of final permit processing procedures for the Water Quality Certification Permit and the Section 1642 Streambed Alteration Agreement. Coordination activities will include preparing correspondence and participating in telephone calls with agency staff members assigned to process the permits. These services also include up to two meetings with assigned regulatory agency staff during the review process. BonTerra Consulting will provide regulatory permit status reports to the City each month until the permits are issued. It is difficult to anticipate all processing requirements associated with this task. As a result, if the proposed regulatory permit processing budget exceeds the amount identified in this task, BonTerra Consulting will request a Budget Augment to complete the regulatory process. k:tPrajettsrnssvp�ntfQ23tPraposehSOw Bia-tzil�2.Goc A-4 Scope EXHIBIT B FEE ESTIMATE BONTERRA CONSULTING Page B-1 Sunset Ridge Parte Project ATTACHMENT B FEE ESTIMATE BIOLOGICAL SERVICES SUNSET RIDGE PARK PROJECT SITE December 12, 2012 Title Service Rate Hours Total Task 1. Lighting Plan Review Project Manager Oversight/Review 190.00 6.01 $1,520.00 Wildlife Biologist Review/Memo 110.00 7.0 $770.00 Technical Editor Editing 90.00 2.0 $180.00 Administrative Support Word processing/Admin Support 75.00 4.0 $300.00 Total Task 1 $2,770.00 Task 2. Pre -Construction Sensitive Species and Nesting Bird Surveys Project Manager OversightlReview 190.00 10.01 $1,900.00 Wildlife Biologist Review/Memo - 110.00 31.0 $3,410.00 GIS Specialist GIS/graphics support 100.00 3.0 $300.00 Technical Editor Editing 90.00 2.0 $180.00 Administrative Support Word processing/Admin Support 75.00 3.0 $225.00 Total Task 2 $6,015.00 _ Task 3. Contractor Meetings/Coordination Project Manager Oversight/Review 190.00 3.0 $570.00 Wildlife Biologist Review/Memo 110.00 1 16.01 $1,760.00 Total Task 3 $2,330.00 Task 4. Construction Monitoring Project Manager Oversight/Review 190.00 7.0 $1,330.00 Wildlife Biologist Review/Memo 110.00 - 181.0 $19,910.00 GIS Specialist GIS/graphics support 100.00 3.0 $300.00 Technical Editor Editing 90.00 2.0 $180.00 Administrative Support Word processing/Admin Support 75.00 5.0 $375.00 Total Task 4 $22,095.00 Task 5. Human Intrusion Monitoring Plan Project Manager Oversight/Review 190.00 '.. 7.0 $1,330.00 Wildlife Biologist Review/Memo 110.00 16.0 $1,760.00 GIS Specialist GIS/graphics support 100.00 4.0 $400.00 Technical Editor Editing 90.00 2.0 $180.00 Administrative Support Ward processing/Admin Support 75.00 4.0 $300.00 Natal Task 5 $3,970,00 Task G. ComesticlFerat Cat Predation Monitoring and Exclusion Plan Project Manager Overslght/Review190,00 7.01 $1,330.00 Wildlife Biologist Review/Memo 110.00 : 16.0 $1,760.00 GIS Specialist GIS/graphics support 100.00 4.0 $400.00 Technical Editor Editing 90.00 2.0 $180.00 Administrative Support Wordprocessing/Admin Support 75.00 4.0 $300.00 Total Task 6 $3,970.00 R,lProjecrsx ewpoaV023tProposeReew BIOA21212AW B-1 Fee Estimates Sunset Ridge Park Project ATTACHMENT B FEE ESTIMATE BIOLOGICAL SERVICES SUNSET RIDGE PARK PROJECT SITE (Continued) Title Service Rate Hours Total Task 7. Brown -headed Cowbird Monitoring and Trapping Plan Task 7A. Monitoring and Trapping Plan Project Manager Oversight/Review 190.00 7.0 $1,330.0o Biologist Review/Memo 80.00 27.0 $2,160.00 Technical Editor Editing 90.00 2.0 $180.00 Administrative Support Word processing/Admin Support 75.00 4.0 $300.00 Total Task 7A $3,970.00 Task 7B. Implementation of Trapping Plan Project Manager Oversight/Review 190,00 2.0 $380.00 Biologist Review/Memo 80.00 206.5 $16,520.00 Technical Editor Editing 90,00 2.0 $180A0 Administrative Support Word processing/Admin Support 75.00 5.0 $375.00 Per Year Subtotal $17,455.00 Total Task 7B (Five Years) $87,275.00 Total Task 7 $91,245.00 Task 8, Regulatory Support Services Project Manager Oversight/Review 190.00 8.0 $1,520.00 Regulatory Manager Permit processing 180.00 27.0 $4,860.00 GIS Specialist GIS/graphics support 100.00 4.0 $400.00 Administrative Support Word processing/Admin Support 75.00 5.0 $375.00 Total Task 8 $7,155.00 Total Tasks 1 to 8 $139,550.00 RiPr.jectsWavp.rtU023�PmposallSOW Bio -1212120.. B-2 Fee Estimates EXHIBIT C 1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1.1 Provision of 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. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 1.2 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. 1.3 Coverage Requirements. 1.3.1 Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. 1.3.1.1 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. 1.3.2 General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 1.3.3 Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 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 each accident. BONTERRA CONSULTING Page C-1 1.3.4 Professional Liability (Errors & Omissions) Insurance. 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) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement. 1.4 Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 1.4.1 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 from each of its subconsultants. 1.4.2 Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. 1.4.3 Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. 1.4.4 Notice of Cancellation. All policies shall provide 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. 1.5 Additional Agreements Between the Parties. The parties hereby agree to the following: 1.5.1 Evidence 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 and other endorsements as specified herein for each coverage. 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 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 1.5.2 City's Right to Revise Requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Consultant sixty (60) days advance written notice of VONTERRA CONSULTHIGag such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation. 1.5.3 Enforcement of Agreement 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. 1.5.4 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. 1.5.5 Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City. 1.5.6 City Remedies for Non Compliance If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. 1.5.7 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, and that involve or may involve coverage under any of the required liability policies. 1.5.8 Consultant's 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. BONTERRA CONSULTING Page C-3 CERTIFICATE OF INSURANCE CHECKLIST This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 2/12/13 Dept./Contact Received From: Tania Date Completed: 2/12113 Sent to Tania By: Renee Company/Person required to have certificate: Bonterra Consulting, Inc. Type of contract: All Other 1. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 1/27/13 to 1/27/14 A. INSURANCE COMPANY: American Safety lndemxxity Company B. AM BEST RATING (A-: VII or greater): A; IX C. ADMITTED Company (Must be California Admitted): INSURANCE COMPANY: American Safety IndemnLty Company Is Company admitted in California? ❑ Yes ® No D. LIMITS (Must be $1 M or greater): What is limit provided? $1,000,000 / $2,000,000 E. ADDITIONAL INSURED ENDORSEMENT— please attach 0 Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does El Yes 0 No not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND COMPLETED OPERATIONS ENDORSEMENT (completed $1,000,000 Operations status does not apply to Waste Haulers) ®, Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it N/A included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be Included): Is it included? ® Yes Q No J. CAUTION! (Confirm that loss or liability of the named insured HIRED AND NON -OWNED AUTO ONLY: is not limited solely by their negligence) Does endorsement H. include "solely by negligence" wording? ❑ Yes [0 No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes © No L. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 1/27/13 to 1/27/14 A. INSURANCE COMPANY: American Safety IndemnLty Company B. AM BEST RATING (A-: VII or greater) _AIX T_ C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? El Yes 0 No D. LIMITS - if Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A 0 Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ® No H. NOTICE OF CANCELLATION: © N/A 0 Yes ❑ No lK. VVORKERS'COMPEN3ATON EFFECT|VBEXP|RATION DATE: 1/27/13 A. INSURANCE COMPANY: State Compensation Insurance Fund B. AM BEST RATING (A-: VII or greater): NotRated C. ADMITTED Company(Must beCalifornia Adnidedt D. WORKERS' COMPENSATION LIMIT: Statutory E. EMPLOYERS' LIABILITY LIMIT (Must bo$1&Ynrgreater) F WAIVER (]FSUBROGATION (To inn|ode): }oitincluded? G. SIGNED VVDRKERS`C8KAPENSAT/0NEXEMPTION FORM: H. NOTICE UFCANCELLATION: ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? 3113/1l 10 Agent ofAUiantInsurance Services Date Broker of record for the City of Newport Beach El Yes 0 N MNIA El Yes [I No DN/A 0Yes 0 N F1 N/A El Yes El No 0 NIA El Yes F71 No RISK MANAGEMENT APPROVAL REQUIRED - Nnn'adnithedcarrier rated less than ; Self Insured Retention or Deductible greater than $_) El NTA 0 Yes LJ No Reason for Risk Management appnovaVeXve[tionhwak/or American Safety Indemnity Cc is a Non -Admitted Carrier, need Risk Management Approval, 2/12113 Sheri Anderson Al2proves Non -Admitted Status. Approved; Risk Management Dote PROFESSIONAL SERVICES AGREEMENT WITH BONTERRA CONSULTING FOR REGULATORY AND BIOLOGICAL SUPPORT SERVICES FOR THE SUNSET RIDGE PARK PROJECT THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement') is made and entered into as of this day ofl i ik %O 2@11 -by and between the CITY OF NEWPORT BEACH, a California Municipal orporation ("City"), and, BONTERRA CONSULTING a California corporation ("Consultant'), whose address is 151 Kalmus Drive, Suite E200, Costa Mesa, California 92626 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to develop Sunset Ridge Park with a baseball field, youth soccer fields, play areas, a memorial butterfly garden, picnic areas and walking paths, an overlook area with shade structure, restroom facilities and parking lot. C. City desires to engage Consultant to provide biological and regulatory technical support services as part of the Coastal Development Permit (CDP) processing activities with the California Coastal Commission for the Sunset Ridge Park 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 Ann M. Johnston. 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 City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. 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 "Services"). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 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. 3.1.1 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. 3.2 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6 below) 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. 3.3 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 4.1 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 Forty -Four Thousand, Eight Hundred Ninety -Five Dollars and no/100 ($44,895.00) 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. 4.2 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. 4.3 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: BONTERRA CONSULTING Page 2 4.3.1 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. 4.3.2 Approved reproduction charges. 4.3.3 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. 4.4 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 5.1 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 Ann M. Johnston 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. 5.2 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. Michael J. Sinacori, P.E., Assistant City 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. 7. CITY'S RESPONSIBILITIES 7.1 In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: 7.1.1 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. BONTERRA CONSULTING Page 3 7.1.2 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. 7.1.3 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 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, 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). BONTERRA CONSULTING Page 4 9.2 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 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 14.1 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. BONTERRA CONSULTING Page 5 14.2 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 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 14.2.1 Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subcontractors. The cost of such insurance shall be included in Consultant's bid. 14.3 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. 14.4 Coverage Requirements. 14.4.1 Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor's employees. 14.4.1.1 Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non-payment of premium) prior to such change. 14.4.1.2 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. 14.5 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. 14.6 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. BONTERRA CONSULTING Page 6 14.7 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. 14.8 Other Insurance Provisions or Requirements. 14.8.1 The policies are to contain, or be endorsed to contain, the following provisions: 14.8.1.1 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 subcontractors. 14.8.1.2 Enforcement of Agreement 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. 14.8.1.3 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. 14.8.1.4 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. 14.9 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. 14.10 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 BONTERRA CONSULTING Page 7 joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power, or twenty- five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the Work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS 17.1 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. 17.2 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. 17.3 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As -Built' drawings, and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 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. BONTERRA CONSULTING Page 8 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be 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 24.1 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 BONTERRA CONSULTING Page 9 performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 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. 25.1 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: Michael J. Sinacori, P.E., Assistant City Engineer PUBLIC WORKS DEPARTMENT City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949-644-3342 Fax: 949-644-3318 25.2 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Ann M. Johnston BONTERRA CONSULTING 151 Kalmus Drive, Suite E200 Costa Mesa, CA 92626 Phone: 714-444-9199 Fax: 714-444-9599 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, 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 27.1 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 BONTERRA CONSULTING Page 10 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. 27.2 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. 28. STANDARD PROVISIONS 28.1 Compliance With all Laws. Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.2 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. 28.3 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. 28.4 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. 28.5 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. 28.6 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. BONTERRA CONSULTING Page 11 28.7 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. 28.8 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. 28.9 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. 28.10 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 28.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES NEXT PAGE] BONTERRA CONSULTING Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE A California municipal corporation Date: 17- / /to /it Date: 1 // 3 h 7 By: 4 lu y: U Aad �r en . Badum City AttorneybIi orks Director ATTEST: tKz CONSULTANT: BONTERRA Date: CONSULTING, a California Corporation Date: By: Am) �''►VV Leila, i I. Bidvvn City Clerk Vwpn \ Date: L- 16700 - By: �v nn M �T0ha5� [END OF SIGNATURES] Attachments: Exhibit A - Scope of Work Exhibit B - Schedule of Billing Rates BONTERRA CONSULTING Page 13 EXHIBIT A Sunset Ridge Park Project ATTACHMENT A BUDGET AUGMENT SCOPE OF WORK AND ESTIMATED FEES SUNSET RIDGE PARK PROJECT BIOLOGICAL RESOURCES SUPPORT SERVICES December 5, 2011 TASK 1 BIOLOGICAL RESOURCES AND REGULATORY SERVICES TECHNICAL SUPPORT $44,895.00 BonTerra Consulting will continue to provide biological resources and regulatory technical support to respond to questions and/or comments from City and California Coastal Commission staff during the Coastal Development Permit (CDP) preparation and processing and during the California Coastal Commission hearing on this project. Services will include the response to comments and questions. This task does not include additional surveys or data collection. BonTerra Consulting will be available to participate in project meetings with staff and their consultant team (including Don Schmitz and Associates) during the preparation and processing of the CDP permit application. BonTerra Consulting will also provide biological resources and regulatory services technical support in the preparation and processing of a new Coastal Development Permit (CDP) seeking authorization from the California Coastal Commission for the approval of the Sunset Ridge Park project. These services will include technical support to assist in the preparation of the CDP application and to respond to questions and/or comments from California Coastal Commission staff during the CDP preparation and processing and during the California Coastal Commission hearing on this project. Services will include responses to comments and questions. This task does not include additional surveys or data collection. BonTerra Consulting will be available to participate in meetings with City staff and their consultant team (including Don Schmitz and Associates) during the preparation and processing of the CDP application. Any technical assistance beyond the costs estimated for this task would require a budget augment approved by the City prior to the initiation of any additional technical services. A-1 Scope of Work and Estimated Fees EXHIBIT B Sunset Ridqe Park ATTACHMENT B FEE SHEET SUNSET RIDGE PARK PROJECT BIOLOGICAL TECHNICAL SUPPORT SERVICES December 5, 2011 TASK 1 - California Coastal Commission Biological Resources Technical Support Staff Name Title Hourly Rate Ann Johnston Principal $205.00 Gary Medeiros Assoc Principal $180.00 Brian Daniels Senior Biologist/Ornithologist $130.00 Melissa Howe Associate Principal $180.00 Bob Allen Senior Botanist $130.00 Amber Oneal Senior Biologist $135.00 Johnnie Garcia GIS $95.00 Allison Rudalevige Biologist $95.00 Julia Black Editor $80.00 Admin Admin $75.00 CADocuments and Settingsltmoore\Local Settings\Temporary Internet Files\Content.Outlook\X7A2X6EA\Sunset Ridge PK—Budget Augment SOW-120511.docx B-1 Cost Estimate