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HomeMy WebLinkAboutC-4546 - PSA for California Coastal Commission Application of Marina Park and Sunset Ridge Parkv1 AMENDMENT NO. SEVEN TO PROFESSIONAL SERVICES AGREEMENT WITH I� �) SCHMITZ & ASSOCIATES, INC. FOR CALIFORNIA COASTAL COMMISSION APPLICATIONS FOR MARINA PARK AND 1 SUNSET RIDGE PARK V THIS AMENDMENT NO. SEVEN TO PROFESSIONAL SERVICES AGREEMENT ( "Amendment No. Seven "), is entered into as of this 11i% day of October, 2012, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City"), and SCHMITZ & ASSOCIATES, INC. a California Corporation whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California 90265 ( "Consultant "), and is made with reference to the following: RECITALS: A. On July 22, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for preparation and processing of the California Coastal Commission's Coastal Development Permits Applications services for Marina Park and Sunset Ridge Park ( "Project "). B. On November 30, 2010, City and Consultant entered into Amendment No. One to the Agreement to increase the scope of work, increase the total compensation and update the insurance requirements ( "Amendment No. One "). C. On April 22, 2011, City and Consultant entered into Amendment No. Two to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. Two "). D. On October 7, 2011, City and Consultant entered into Amendment No. Three to the Agreement to extend the term of the Agreement, to increase the total compensation and update insurance requirements ( "Amendment No. Three "). E. On January 12, 2012, City and Consultant entered into Amendment No. Four to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. Four "). F. On February 13, 2012, City and Consultant entered into Amendment No. Five to the Agreement to reflect additional services not included in the Agreement or prior Amendments and to increase the total compensation ( "Amendment No. Five "). G. On July 10, 2012, City and Consultant entered into Amendment No. Six to reflect additional services not included in the Agreement or prior Amendments and to increase the total compensation ( "Amendment No. Six "). H. City desires to enter into this Amendment No. Seven to reflect additional Services not included in the Agreement or prior Amendments and to increase the total compensation ( "Amendment No. Seven "). I. 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 and Exhibit A of the Agreement, as previously amended, shall be amended and supplemented to include the Supplemental Agreement Request for Sunset Ridge Park Project dated August 28, 2012, which is attached hereto as Exhibit A and incorporated herein by reference. Exhibit A of the Agreement, as previously amended, and Exhibit A of Amendment No. Seven shall collectively be known as "Exhibit A ". The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 2. COMPENSATION Section 4.1 of the Agreement as amended shall be amended in its entirety and replaced with the following: 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, the Scope of Services and Exhibit A, and the Schedule of Billing Rates attached to the Agreement as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, as amended, including all reimbursable items and subconsultant fees, shall not- exceed Four Hundred Seventy -Eight Thousand, Two Hundred Thirty -Eight Dollars and 27/100 ($478,238.27) 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. 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] SCHMITZ & ASSOCIATES, INC. Page 2 IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Seven on the dates written below. APPROVED AS TO FORM: CITY ATT RNEY'S OFFICE Date: B vT-141/ Aaron C. Harp City Attorney ATTEST: Date: 1O 11• l.Z By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: lx�')--'- (;- Dave -iff_. City Manager CONSULTANT: SCHMITZ & ASSOCIATES, INC., a California Corporation Date: By: onald W. Schmitz, II, AICP ief Executive Officer and Oief Financial Officer Attachment: Exhibit A — Supplemental Agreement Request for Sunset Ridge Park Project dated August 28, 2012 [END OF SIGNATURES] SCHMITZ & ASSOCIATES, INC. Page 3 EXHIBIT A SUPPLEMENTAL AGREEMENT REQUEST FOR SUNSET RIDGE PARK PROJECT SCHMITZ & ASSOCIATES, INC. Page 4 August 28, 2012 Via E -Mail Dave Webb, Deputy Director Department of Public Works City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 RE: Schmitz & Associates'— Supplemental Agreement Request for Sunset Ridge Park Project Dear Mr. Webb: We were pleased to have had the opportunity to assist the City in realizing a significant victory on August 9, 2012 in the form of the Coastal Commission's approval of the Sunset Ridge Park project As you know, we were working against a CCC staff recommendation of denial and much effort was put into successfully rebutting staffs findings and demonstrating effectively to the Commissioners the merits of this project. Please find below our Supplemental Agreement request for the final two months of our services on this project. Julv 2012 CCC hearing Note In preparing for the July 12, 2012 CCC hearing in Chula Vista, S &A exceeded the previous supplemental budget by $18,473.40. Some previously unanticipated (and therefore unbudgeted) activities included: coordination with Sacramento lobbyist and preparation of materials for him as requested and draft letters for project advocates; assistance with various correspondences drafted by the City for submittal to the CCC; preparation of materials for ex parte communications /meetings. Additional presentation work to rebut staff's findings. Activity Estimated Hours & Rate Costs 1. Draft letters for project advocates and 17.82 hrs @ $175/hr $3119.50 prepare materials for Sacramento lobbyist as requested. 2. Communications /Meetings with City and CCC 63 hrs @ avg. $200 /hr $12,764.38 staff. Assist with City's draft letters to CCC. Preparation of Ex Parte meeting handouts /packets and draft declarations post - meetin /communications with Commissioners. 3. Hearing PPT presentation work. Additional 12.16 hrs @ avg. $155Ihr $1,885 historical aerials research to fill in "gaps" in record indicated by CCC staff. Additional encelia and CSS common status research. 4. Reimbursable Costs: additional historical $704.52 aerial photos fees and June ex partes travel costs. ProfessionafCourtesyCredit: $2,000) Total: $16,473.40 PROVIDERS OF LAND USE PLANNING FOR A BETTER COMMUNITY HEADOUARTERS - MALIBU OFFICE 29350 PACIFIC COAST Hwy., SUITE 12 MALIBU, CA 90265 TEL: 310.589.0773 FAX: 310.589.0353 EMAIL: INFO @SCHMITZANDASSOCIATES.NET REGIONAL - CONEJO VALLEY OFFICE 5234 CHESEBRO ROAD, SUITE 200 AGOURA HILLS, CA 91301 TEL: 818.338.3636 FAX: 818..338.3423 VVESSITE: WWW.SCHMITZANDASSOCIATES.COM August 2012 CCC hearing Note: Supplemental Budget & Agreement approved by City Council on July 10, 2012 did not contemplate a continuance to a August hearing date; therefore, additional activities were undertaken between the July and August CCC hearings in the form of additional meetings/communications with City staff, CCC staff, Coastal Commissioners, re- noticing efforts, off -site restoration proposals, assistance with various correspondences submitted to the CCC by the City, preparation of ex parte documents for Commissioners, and modifications to the PPT presentation for use at the Aug. CCC hearing in Santa Cruz and representation at said hearing. Activity Estimated Hours & Rate Costs 1. Communications /Meetings with City and CCC 62.7 hrs @ avg. $200 /hr $12,542.98 staff, particularly regarding off -site restoration proposal and nuisance abatement issues. Assist with City's draft letters to CCC. Prepare draft special conditions for off -site proposal. 2. Review and advise on revised CDP staff 2.4 hrs @ $175/hr $420 report and prepare responsive comments. 3. Additional ex partes. Includes ex parte 20 hrs @ $275/hr $5,500 preparation of handouts /documents for Commissioners and draft declarations subsequently. 4. Modified PPT presentation for Aug. CCC 47.86 hrs @ avg. $155/hr $7,418 hearing. 5. Representation at Aug. 2012 CCC hearing. 10 hrs @ $2751hr $2,750 6. Reimbursable Costs: travel costs associated $3,888.27 with ex partes and Aug. hearing and additional reprographics. Professional Courtesy Credit." $2,000 Total: $30,519.25 Post - August CCC Hearing As requested by the City, we are assisting the City with ensuring an accurate and prompt process for the CCC's revised findings and issuance of their Notice of Intent (NOI) to Issue Coastal Development Permit. Activity Estimated Hours & Rate Costs 1. Communications /Meetings with City and CCC 10 hrs @ avg. $275 1hr $2,750 staff regarding revised findings and NO] issuance by CCC staff. Assumes one meeting with CCC staff, communications with City staff, and reviewing associated documents when issued by CCC. This estimate /budget does not contemplate assisting with compliance with the Special Conditions of approval. Grand Total: $4g.747.65 Again, we thank you and the City for the opportunity to be of assistance on the Sunset Ridge Park project. Congratulations and we look forward to visiting the completed Park in the near future! Best Regards, SCH�jMITZ& ASSOCIATES, INC. EJil'x ° � °n U S Donna Tripp Regional Manager AMENDMENT NO. SIX TO PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. FOR CALIFORNIA COASTAL COMMISSION APPLICATIONS FOR MARINA PARK AND SUNSET RIDGE PARK THIS AMENDMENT NO. SIX TO PROFESSIONAL SERVICES AGREEMENT ( "Amendment No. SIX "), is entered into as of this JA day of , J W 2012, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and SCHMITZ & ASSOCIATES, INC. a California Corporation whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California 90265 ( "Consultant "), and is made with reference to the following: RECITALS: A. On July 22, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for preparation and processing of the California Coastal Commission's Coastal Development Permits Applications services for the Marina Park and Sunset Ridge Park ( "Project "). B. On November 30, 2010, City and Consultant entered into Amendment No. One to the Agreement to increase the scope of work, increase the total compensation and update the insurance requirements ( "Amendment No. One "). C. On April 22, 2011, City and Consultant entered into Amendment No. Two to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. Two "). D. On October 7, 2011, City and Consultant entered into Amendment No. Three to the Agreement to extend the term of the Agreement, to increase the total compensation and update insurance requirements ( "Amendment No. Three "). E. On January 12, 2012, City and Consultant entered into Amendment No. Four to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. Four "). F. On February 13, 2012, City and Consultant entered into Amendment No. Five to the Agreement to reflect additional services not included in the Agreement or prior Amendments and to increase the total compensation. G. City desires to enter into this Amendment No. Six to reflect additional Services not included in the Agreement or prior Amendments and to increase the total compensation. H. City and Consultant mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Section 2 of the Agreement, as amended shall be supplemented to include the Supplemental Agreement Estimate dated June 8, 2012, which is attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 2. COMPENSATION Section 4.1 of the Agreement as amended shall be amended in its entirety and replaced with the following: 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, the Scope of Services and Supplemental Agreement Estimate attached to the Agreement as Exhibit A and the Schedule of Billing Rates attached to the Agreement 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 Four Hundred Twenty Eight Thousand, Four Hundred Ninety Five Dollars and 62/100 ($428,495.62) 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. 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] SCHMITZ & ASSOCIATES, INC. Page 2 IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Six on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY AT R EY'S OFFICE A California Tunicipal corporation Date: Date: BqoC. By: - Aarp �/c Nancy Gardn r City Attorney b(; Mayor ATTEST: CONSULTANT: SCHMITZ & Date: ASSOCIATES, INC., a California Corporation ;xr-. Date: % (, P 4 By: BY Y: Leilani I. Brown :4,7 Donald W. Schmitz, II, AICP City Clerk \F% Chief Executive Officer and Chief Financial Officer Attachment: Exhibit A — Supplemental Agreement Estimate [END OF SIGNATURES] SCHMITZ & ASSOCIATES, INC. Page 3 6 June 8, 2012 Via Email Dave Webb City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Sunset Ridge Park Project — Supplemental Agreement Estimate Dear Mr. Webb: Schmitz & Associates is pleased to have the opportunity to continue to be of assistance to the City of Newport Beach on the Sunset Ridge Park and Marina Park projects. This correspondence serves to provide you with our Supplemental Estimate for the City's consideration and approval. Sunset Ridge Park The currently pending project Coastal Development Permit (CDP) application was submitted to the Coastal Commission in December of 2011. Our previously prepared and approved estimate for this CDP processing assumed only one round of incompletion comments from Coastal staff. As you are aware, since our December 2011 submittal, we have had several meetings and phone discussions with Coastal staff wherein they have raised specific issues and made particular requests for additional information. We have worked with the City in preparing the requisite responsive materials. In addition, despite past positive discussions between the City and CCC Deputy Director on the mowing issue, the issue remains unresolved and required more of our involvement than initially anticipated. Finally, because our April hearing date was postponed by CCC staff and due to the recommendation of denial by CCC staff as per their June 1, 2012 staff report based on the mowing issue, we will be conducting another round of ex parte meetings /communications with Coastal Commissioners and preparing a responsive submittal to the CDP staff report arguments. Activities Estimated Hours Estimated Cost of Services 1. CDP Application Processing: 5 hrs @ $175/hr $2,250 Communications /meetings with CCC staff regarding Plus all requests for additional information and regarding 5 hrs @ $275/hr specific feedback from project application review. Preparation of responsive materials/ correspondences for submittal to CCC staff as needed. Communications and coordination with City staff and project consultants regarding same. 2. CCC Advocacy. Includes S&A Principal 60 hrs @ $275 /hr $17,375 Meeting /Communicating with Coastal Plus Commissioners. Includes preparation of materials for 5 hrs @ $175/hr said ex parte discussions and subsequent preparation of ex parte declarations. ES INC. PROVIDERS OF LAND USE PLANNING FOR A BETTER COMMUNITY HEADevAR I ERS - M@.LISO OFFICE 29350 PACIFIC COAST N'uv., SUITE 12 MALIBU. CA 90265 TEU 310.589.0773 FAX 310- 589,0353 REGIONAL - CONEJO VALLEY OFFICE 5234 CHESEBRO ROAD, SUITE 200 AGOURA. HILLS, CA 91301 TEL. 818 338 3636 FAX' 818 338 3423 EMAIL: TFtFO @SCHMITZAIIIDASSOQATES.NET wEESITEi :.bi'`iY.SCHMITZAPI IiASS OC!A. I TS S.COM 3. CDP Staff Report Discussions/ Responses and Hearing Preparations. Meetings /communications with CCC staff on remaining issues /staff report findings and recommendations. Includes meeting with CCC Executive Director on May 8, 2012. Includes coordination regarding potential Sacramento advocacy. Includes preparing a responsive analysis and submittal to CCC staff in response to their June Marina Park 15 hrs @ $275 1hr $7,625 Plus 20 his @ $175/hr As you know, besides the State Lands Commission boundary determination issues (which have been addressed), two of the other primary issues raised by CCC staff on the Marina Park project which have persisted for several months and which have required additional research and analysis and CCC staff meetings were those pertaining to the lighthouse feature and more importantly the wetlands claim. These issues greatly expanded our activities and hours related to Phase III ( "CDP Application Processing /Advocacy with Staff') of our originally approved contract. As such, hours initially allocated for Phase IV ( "CDP Application Hearing Preparation ") were utilized. We are pleased with CCC staff's recommendation of approval. However, as you are aware, there are several Special Conditions recommended by staff to which we have had to respond and counter. As we approach this month's CDP hearing for this project, we respectfully request additional hours for ex parte communications /meetings with Coastal Commissioners and preparation of our PowerPoint presentation and handouts for the CDP hearing. Activities Estimated Hours Estimated Cost of Services 1. Ex Parte Meetings and Communications 40 hrs @ $275/hr $11,825 in Preparation for Hearing. Includes Plus preparation of briefing materials and handout 5 hrs @ $165/hr documents for CCC ex parte meetings (as requested by some Commissioners). 2. Preparation of PowerPoint and Handouts 60 hrs @ $165 /hr $9,900 for June CDP Hearing. Includes modifications based on desi n team and City staff's feedback. 3. Research and analysis and preparation of 5 hrs @ $275/hr $3,850 correspondence in response to CDP staff Plus report's specific Special Conditions. 15 hrs @ $165/hr Includes coordination of input from design team and City staff. Includes follow up communications with CCC staff. Subtotal: $25,575 -TOTAL (NB =SRP � $52;825 . and "MP )': lual _ • h' • 0 2D?2 Agenda Item No" °5" July 10, 2012 T0: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Stephen G. Badum, Director of Public Works 949 - 644 -3311, sbadum(@newportbeachca.gov PREPARED BY: David Webb, Deputy Director of Public Works /City Engineer APPROVED: ` d TITLE: Approval of Amendment No. 6 to Professional Services Agreement with Schmitz & Associates for Project Processing Assistance ABSTRACT: The City entered into a Professional Services Agreement with Schmitz & Associates, Inc., for Coastal Development Permit (CDP) preparation, processing and support services for the Sunset Ridge Park and Marina Park projects. Additional services are required for supplemental analyses, meetings, and correspondence to address on -going California Coastal Commission (CCC) issues. RECOMMENDATION: Approve Amendment No. 6 to the PSA with Schmitz & Associates, Inc. (Schmitz) of Malibu, California for California Coastal Commission application preparation, processing and support services at an additional Contract Cost of $52,825 and authorize the Mayor and the City Clerk to execute the Amendment. FUNDING REQUIREMENTS: The current contract limit (including all approved amendments) is $375,836.50. With approval of this amendment, the new contract limit will be $428,661.50. Sufficient funding for this contract amendment is available in the current adopted budget. This item will be expensed to the Sunset Ridge Project account No. 7412- C5100515. DISCUSSION: On June 8, 2010, City Council selected Schmitz and Associates to prepare process and provide support services in the pursuit of the necessary Coastal Development Permits (CDP's) for both the Sunset Ridge and Marina Park projects through the California Coastal Approval of Amendment No. 6 to Professional Services Agreement with Schmitz & Associates for Project Processing Assistance July 10, 2012 Page 2 Commission. Since entering the original contract, staff has found it necessary to process four amendments to provide additional compensation in response to both expected and unexpected issues raised by the California Coastal Commission and /or the California State Lands Commission. Both CDP applications have also experienced significant delays associated our efforts to work through these state agencies. Sunset Ridge Park After considerable meetings, additional requested studies, and several plan modifications associated with coastal staffs alleged concerns regarding various areas of vegetation, as well as how our proposed access road connected to PCH and crossed the Banning Ranch Property, the City's preferred Sunset Ridge Project application was finally presented and heard at the November 2011 Coastal Commission meeting in Carlsbad. The City ended up pulling the application prior to the Commission vote due to a number of factors including misinformation presented by the Banning Ranch Conservancy and unacceptable project conditions placed upon the Banning Ranch property owners by Coastal Staff. An alternative park concept plan and Coastal Commission application was then developed and submitted to the Coastal Commission in December 2011. Again, we were confronted with more vegetation and animal concerns as well as their new concern for our ongoing maintenance mowing of the property. In addition to the efforts necessary to process the first and now second CDP application for Sunset Ridge Park, Schmitz and Associates worked with the City in addressing a Notice of Violation issued by the Coastal Commission within the project site area during our first CDP application cycle for Sunset Ridge Park. Even though the Notice of Violation was for a period that the City did not own the property, nor did the City cause the alleged violation, the City chose to take the "High Road" and play an active role in resolving the violation so as to allow the project CDP application to move forward. This issue was resolved in April 2011. Given the continuing active resistance by BRC over the annual historic mowing of the Sunset Ridge property and their desire for this area to be preserved as passive open space use, staff and our consultant have and continue to be spending much more time than envisioned on additional meetings, correspondence, and analyses responding to additional issues raised by the California Coastal Commission. However after much effort, the Coastal Commission hearing for our second application of Sunset Ridge Park is now set for July 12, 2012. Marina Park Schmitz has also been activity engaged in the preparation and filing of the Marina Park CDP application. Marina Park's CDP application was filed in October 2010, and after many delays and turns in the road, it was finally heard and approved at the June 2012 Commission Hearing. This application too turned out to be full of challenges as well. A Tidelands boundary dispute with the State Lands Commission required some unanticipated assistance by Schmitz and Associates to engage the Lieutenant Governor's Z Approval of Amendment No. 6 to Professional Services Agreement with Schmitz & Associates for Project Processing Assistance July 10, 2012 Page 3 office in resolving the tidelands boundary over the Marina Park property. Schmitz assistance was necessary as the Coastal Commission staff would not further our CDP permit for the Marina Park Project until a tideland boundary agreement with the State Lands Commission had been obtained. Neither the issues with the State Lands Commission nor the many additional meetings and correspondence with Coastal Commission staff to move this application forward were originally anticipated. The boundary agreement was eventually resolved to the satisfaction of the City and finalized in March 2012. Twenty special conditions were eventually proposed by Coastal Staff on the project. Many were problematic and required a great deal of Coastal Commission experience to resolve. One of these conditions involved coastal staff's contention that all intra -tidal areas were going to be classified as wetlands, which if applied to the project, would have resulted in the deletion of the proposed Marina and associated Sailing Center. These significant and unanticipated items, as well as continued efforts to work out differences among the Regulatory Agencies have consumed additional City and project consultant resources. This unfortunate additional processing has resulted in an increase in the scope of services required of Schmitz and Associates. These items have also resulted in significant delays in starting construction on both projects. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQK) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: /G. Badum, of Public Works A. Amendment No.6 to Professional Services Agreement 4 AMENDMEMTNO: SIX TO By: By Aar C. HaYp ! Nancy Gardner Cit Y AttoYne Y . Mayor ATTEST: ( c;o NSULTQNT $CMMITZ &: Date: - .. ASSOCIATES, ING. a California -P 110 Date; . By By* Lellani I. Brown Donald W ,Schmitz, II `AICP:" Cfty Clerk ' Chief Executive Officer ,and Chief Financial Officer Attachment: Exhibit A— Supplemental Agreement,Estimate [END OF SIGNATURES] 4, mi a I. r • EXHI" IT A mi 3. CDP S HeariH6 F with CCC. findings a with ;CCC' Includes c arh mpanv I. .Marina "-Park ctiJities 1') I _:Subtotal: 1 327;250. _ 1 (which on the Marina ' additional Iighthd se our with Commission r primary issues everal months ieetings were rids claim:; (, "CDp bounds ".y determination'issues raised by CCC staff andiw' ich have;required those pertaining to the These issues greatlyexpanded /Advocacy Apolidati6ff such hours util¢ed. r,'as you are iich we ha- :this protect, with Coastal forthe'GDP Processing initially allocated for Phase We afe pleased with CCC aware,A' re are`s'everal Ve had to respond and we respectfully request Commissioners and hearing;- Estimated Hours Stafftj IV (SCDP " staff's ' Special . counter: qs we additidhal hours preparation of,oiar Estimated Cost of .`Servic'e's ,- rations „40 hrs @ $275W _ $11: 5,` , Plus, inddut 5 firs: @ $165ft,': $9,900 andouts 60 hrs @ $1651hr ' ications ; ' ` eedback:, 'ration of 5 hrs ,@ $275 {h,r $3,850 staff Plus 15 hrs @ $165 /hr gn team $25,575 Subtotal: $52,825 TOTAL (NB, -SRP and MP ): • 1') I AMENDMENT NO. FIVE TO PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. �\ FOR CALIFORNIA COASTAL COMMISSION APPLICATIONS FOR MARINA PARK AND SUNSET RIDGE PARK v I THIS AMENDMENT NO. FIVE TO PROFESSIONAL SERVICES AGREEMENT ( "Amendment No. Five "), is entered into as of this 15 day of February, 2012, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and SCHMITZ & ASSOCIATES, INC. a California corporation whose address is 29350 Pack Coast Highway, Suite 12, Malibu, California 90265 ( "Consultant"), and is made with reference to the following: RECITALS: A. On July 22, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for the preparation and processing of the California Coastal Commission's Coastal Development Permits Applications for the Marina Park and Sunset Ridge Park Projects ( "Project"). B. On November 30, 2010, City and Consultant entered into Amendment No. One to the Agreement to increase the scope of work, increase the total compensation and update the insurance requirements ( "Amendment No. One "). C. On April 22, 2011, City and Consultant entered into Amendment No. Two to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. Two "). D. On October 7, 2011, City and Consultant entered into Amendment No. Three to the Agreement to extend the term, increase the total compensation and to update the Insurance requirements ( "Amendment No. Three "). E. On January 18, 2012, City and Consultant entered Into Amendment No. Four to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. Four"). F. City desires to rescind Amendment No. Four in its entirety and enter this Amendment No. Five to reflect additional services not included In the Agreement or prior Amendments and to clarify and increase the total compensation. G. 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 City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Section 2 of the Agreement, as amended shall be supplemented to Include the Scope of Services dated February 8, 2012 which Is attached hereto as Exhibit 'A' and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 2. COMPENSATION Section 4 of the Agreement as amended shall be amended in its entirety and replaced with the following: 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 Three Hundred Seventy -Five Thousand, Six Hundred Seventy Dollars and 621100 ($375,670.62) 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: 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. SCHMITZ & ASSOCIATES, INC. Page 2 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 to the Agreement. 3. INTEGRATED CONTRACT Except as expressly modified hereln, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Five on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: z /rL By: Aaron C. Ha City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, A California municipal corporation Date: ?J131I1 By: Dave KIff' v City Manager CONSULTANT: SCHMITZ & ASSOCIATES, INC., a California corporation Date: By: — Donald W. Schmitz, II, AICP Chief Executive Officer and Chief Financial Officer Attachment: Exhibit A — Additional Services to be Performed SCHMITZ & ASSOCIATES, INC. Page 3 December 7, 2011 (modified as requested on February 8, 2012) Via Email Dave Webb City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Sunset Ridge Park Project — Supplemental Agreement Estimate (version 2) Dear Messrs. Webb and Sinacod: Schmitz & Associates is pleased to have the opportunity to continue to be of assistance to the City of Newport Beach on the Sunset Ridge Park project. This correspondence serves to provide you with our Supplemental Estimate for the City's consideration and approval. Sunset Ridge Park Plan A, As you are aware, the City was on track to receive a recommendation of approval by CCC Staff for `Plan A" as confirmed in the CCC Staff Report. Due to specific events occurring, this recommendation changed in September. Accordingly, it was necessary for us to work with you to prepare very detailed responses to the CCC's first draft Staff Report which was released in late - September 2011. In addition, we were requested to participate in numerous conference calls and meetings in Newport Beach, as well as to have ex parte discussions with Coastal Commissioners again In light of the new issues raised by CCC Staff. Finally, our presentation for the CCC hearing had to be revised from one that addressed specific proposed special conditions, to one which responded to the numerous project issues presented by CCC Staff in support of their revised recommendation. The below estimate notes that amount in excess of the previously approved Supplemental Agreement. We are pleased to also provide the City with a professional courtesy credit as indicated below. Plan B: We are pleased to assist the City with the preparation, advocacy and representation of an application for the Sunset Ridge Park project with off -site parking (i.e. "Plan B "). The following includes our estimate for our services for this application process. Activity Estimated Hours Estimated Cost of Services Plan A: Services already rendered in excess of the September 2011 Supplemental Agreement (scope of additional services noted above $52,968.04 Reimbursable costs associated with travel and lodging for additional ex partes with Coastal Commissioners $1,748.86 Subtotal: $54.716.90 Professional Courtesy Credit per Don Schmitz Credit: ($19,716.90) Plan A Subtotal: $35,000.00 P� Should you have any questions, please do not hesitate to contact us at (818)338 -3636. We thank you again for this opportunity to be of continued assistance to the City. Sincerely, SCHMITZ & ASSOCIATES, INC. r Donna Tripp Regional Manager Plan B: 1. CDP Application Preparation: Includes 20 hrs @ $175 /hr $5,700 communlcatlons /meetings and preparation with City staff Plus and project consultants regarding required materials, 8 hrs @ $275/hr alternatives analysis, supporting documents, etc.; assumes City staff will make actual submittal to CCC, however. 2. CDP Application Processing: 20 hrs @ $175/hr $6,250 Communications /meetings with CCC staff regarding any Pius incompletion letters/requests for additional information 10 hrs @ $275 1hr and regarding specl is feedback from project application review. Preparation of responsive materials/ correspondences for submittal to CCC staff as needed. Communications and coordination with City staff and project consultants regarding same. (Note: this estimate assumes one round of Incompletion.) 3. CCC Advocacy. Includes S&A Principal 64 hrs @ $275/hr $17,600 Meeting/Communicating with Coastal Commissioners (assumes periodic phone communications and/or discussions at upcoming CCC hearings) and at least one In-person meeting with each Commissioner before CDP Application is scheduled for hearing. 4. CDP Application Hearing Preparation and 29.1 hrs @ $175/hr $10,584.12 Representation. Includes review of staff report and Plus communications with CCC staff regarding findings, 20 hrs @ $275 1hr recommendations, and special conditions. Includes preparation of PowerPoint and representation at CCC hearing. Subtotal: $40,134.12 TOTAL: $75134.12 Should you have any questions, please do not hesitate to contact us at (818)338 -3636. We thank you again for this opportunity to be of continued assistance to the City. Sincerely, SCHMITZ & ASSOCIATES, INC. r Donna Tripp Regional Manager AMENDMENT NO. FOUR TO PROFESSIONAL SERVICES AGREEMENT WITH 1 SCHMITZ & ASSOCIATES, INC. FOR CALIFORNIA COASTAL COMMISSION APPLICATIONS FOR MARINA PARK AND SUNSET RIDGE PARK THIS AMENDMENT NO. FOUR TO PROFESSIONAL SERVICES GREEMENT ( "Amendment No. FOUR "), is entered into as of this "day of , �' , 10 )1- _01,1- by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and SCHMITZ & ASSOCIATES, INC. a California Corporation whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California 90265 ( "Consultant "), and is made with reference to the following: RECITALS: A. On July 22, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for preparation and processing of the California Coastal Commission's Coastal Development Permits Applications services for the Marina Park and Sunset Ridge Park ( "Project "). B. On November 30, 2010, City and Consultant entered into Amendment No. One to the Agreement to increase the scope of work, increase the total compensation and update the insurance requirements ( "Amendment No. One "). C. On April 22, 2011, City and Consultant entered into Amendment No. Two to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. Two'). D. October 7, 2011, City and Consultant entered into Amendment No. Three to the Agreement to extend the term of the Agreement, to increase the total compensation and update insurance requirements ( "Amendment No. Three ") E. City desires to enter into this Amendment No. FOUR to reflect additional services not included in the Agreement or prior Amendments and increase the total compensation. F. City and Consultant mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Section 2 of the Agreement, as amended shall be supplemented to include the Scope of Services dated December 7, 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 as amended shall be amended in its entirety and replaced with the following: City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the Agreement. Consultant's total amended compensation for all work performed in accordance with this Agreement and all prior amendments, including all reimbursable items and subconsultant fees, shall not exceed Three Hundred Seventy -Five Thousand, Eight Hundred Thirty -Six Dollars and 50/100 ($375,836.50) without prior written authorization from City ( "Total Amended Compensation "). No billing rate changes shall be made during the term of this Agreement without the prior written approval of the City. 2.1 The Total Amended Compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. Four, including all reimbursable items and subconsultant fees, in an amount not to exceed Seventy -Five Thousand, Three Hundred Dollars and no /100 ($75,300.00), without prior written authorization from City. 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. SCHMITZ & ASSOCIATES, INC. Page 2 IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. FOUR on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: WISAI "K A-41 0 City Attorney ATTEST: Date: By: 4V uu Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date:�t,.j r� Dave Klif City Manager =o Attachment: Exhibit A — Additional Services to be Performed SCHMITZ & ASSOCIATES, INC. Page 3 CONSULTANT: SCHMITZ & ASSOCIATES, INC., a California Corporatio 2 '/ Date: p� By: !/ Donald W. Schmitz, Il, AICP Chief Executive Officer and +? Chief Financial Officer =o Attachment: Exhibit A — Additional Services to be Performed SCHMITZ & ASSOCIATES, INC. Page 3 EXHIBIT A December 7, 2011 Via Email Dave Webb City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Sunset Ridge Park Project— Supplemental Agreement Estimate Dear Messrs. Webb and Sinacori: Schmitz & Associates is pleased to have the opportunity to continue to be of assistance to the City of Newport Beach on the Sunset Ridge Park project. This correspondence serves to provide you with our Supplemental Estimate for the City's consideration and approval. Sunset Ridge Park Plan A: As you are aware, the City was on track to receive a recommendation of approval by CCC Staff for "Plan A" as confirmed in the CCC Staff Report. Due to specific events occurring, this recommendation changed in September. Accordingly, it was necessary for us to work with you to prepare very detailed responses to the CCC's first draft Staff Report which was released in late - September 2011. In addition, we were requested to participate in numerous conference calls and meetings in Newport Beach, as well as to have ex parte discussions with Coastal Commissioners again in light of the new issues raised by CCC Staff. Finally, our presentation for the CCC hearing had to be revised from one that addressed specific proposed special conditions, to one which responded to the numerous project issues presented by CCC Staff in support of their revised recommendation. The below estimate notes that amount in excess of the previously approved Supplemental Agreement. We are pleased to also provide the City with a professional courtesy credit as indicated below. Plan B: We are pleased to assist the City with the preparation, advocacy and representation of an application for the Sunset Ridge Park project with off -site parking (i.e. "Plan B "). The following includes our estimate for our services for this application process. Activity Estimated Hours Estimated Cost of Services Plan A: Services already rendered in excess of the September 2011 Supplemental Agreement (scope of additional services noted above $52,968.04 Reimbursable costs associated with travel and lodging for additional ex partes with Coastal Commissioners $1,748.86 Subtotal: $54,716.90 Professional Courtesy Credit per Don Schmitz Credit: $19,716.90 Plan A Subtotal: $35,000.00 Should you have any questions, please do not hesitate to contact us at (818)338 -3636. We thank you again for this opportunity to be of continued assistance to the City. Sincerely, SCHMITZ & ASSOCIATES, INC. Donna Tripp Regional Manager Plan B: 1. CDP Application Preparation: Includes 20 hrs @ $175/hr $5,700 communications /meetings and preparation with City staff Plus and project consultants regarding required materials, 8 hrs @ $275 /hr alternatives analysis, supporting documents, etc.; assumes City staff will make actual submittal to CCC, however. 2. CDP Application Processing: 20 hrs @ $175 /hr $6,250 Communications /meetings with CCC staff regarding any Plus incompletion letters /requests for additional information 10 hrs @ $275 /hr and regarding specific feedback from project application review. Preparation of responsive materials/ correspondences for submittal to CCC staff as needed. Communications and coordination with City staff and project consultants regarding same. (Note: this estimate assumes one round of incompletion.) 3. CCC Advocacy. Includes S &A Principal 64 hrs @ $275 /hr $17,600 Meeting /Communicating with Coastal Commissioners (assumes periodic phone communications and /or discussions at upcoming CCC hearings) and at least one in- person meeting with each Commissioner before CDP Application is scheduled for hearing. 4. CDP Application Hearing Preparation and 30 hrs @ $175 /hr $10,750 Representation. Includes review of staff report and Plus communications with CCC staff regarding findings, 20 hrs @ $275/hr recommendations, and special conditions. Includes preparation of PowerPoint and representation at CCC hearing. Subtotal: $40,300 TOTAL: $75,300 Should you have any questions, please do not hesitate to contact us at (818)338 -3636. We thank you again for this opportunity to be of continued assistance to the City. Sincerely, SCHMITZ & ASSOCIATES, INC. Donna Tripp Regional Manager AMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. FOR CALIFORNIA COASTAL COMMISSION APPLICATIONS FOR MARINA PARK AND SUNSET RIDGE PARK THIS AMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT ( "Amendment No. Three "), is entered into as of this -1 h day of __�G'jDbVr , 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and SCHMITZ & ASSOCIATES, INC., a California Corporation whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California 90265 ("Consultant"), and is made with reference to the following: RECITALS: A. On July 22, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for preparation and processing of the California Coastal Commission's Coastal Development Permits Applications services for the Marina Park and Sunset Ridge Park ( "Project "). B. On November 30, 2010, City and Consultant entered into Amendment No. One to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. One "). C. On April 22, 2011, City and Consultant entered into Amendment No. Two to the Agreement to increase the scope of work, increase the total compensation and update the insurance requirements. D. City desires to enter into this Amendment No. Three to reflect additional services not included in the Agreement or prior Amendments, to extend the term of the Agreement to December 31, 2012, to increase the total compensation and update insurance requirements. E. City and Consultant mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement, as amended shall be amended in its entirety and replaced with the following: The term of the Agreement shall terminate on December 31, 2012, unless terminated earlier as provided for in Agreement. 2. SERVICES TO BE PERFORMED Section 2 of the Agreement, as amended shall be supplemented to include the Scope of Services dated July 26, 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. 3. COMPENSATION The introductory paragraph to Section 4 of the Agreement, as amended shall be amended in its entirety and replaced with the following: City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the Agreement. Consultant's total amended compensation for all work performed in accordance with this Agreement and all prior amendments, including all reimbursable items and subconsultant fees, shall not exceed Three Hundred Thousand, Five Hundred Thirty -Six Dollars and 50/100 ($300,536.50) without prior written authorization from City ( "Total Amended Compensation "). No billing rate changes shall be made during the term of this Agreement without the prior written approval of the City. 3.1 The Total Amended Compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. Three, including all reimbursable items and subconsultant fees, in an amount not to exceed One Hundred Seven Thousand, Two Hundred Eleven Dollars and 50/100 ($107,211.50), without prior written authorization from City. 4. INSURANCE Section 4 of the Agreement shall be amended in its entirety and replaced with the following: Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coveraqe. Consultant shall maintain professional liability insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 5. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Three on the dates written below. APPROVED AS TO FORM: OFFICE, Tk�CIITYATTORNEY Date: %1r By: L� Leo ul ihill Assistant City Attorney 40 ATTEST: Ip I Date: / J By: Leilani I. Brow City Clerk N�Qa F-AM LTIE CITY OF NEWPORT BEACH, A California municipal corporation Date: By:� Michael F. Henn Mayor CONSULTANT: SCHMITZ & ASSOCIATES, INC., a California Corporation Date: By: Donald W. Schmitz, II, AICP Chief Executive Officer and Chief Financial Officer � - Additional Services to be Performed with schedule of billing rates j ill July 26, 2011 Via Email c/o Michael Sinacori Dave Webb and Michael J. Sinacori City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Sunset Ridge Park and Marina Park Projects Dear Messrs. Webb and Sinacori: Schmitz & Associates is pleased to continue to have the opportunity to be of assistance to the City of Newport Beach on the Sunset Ridge Park and Marina Park projects. This correspondence serves to provide you with a supplemental estimate as requested by you at present for our services beyond our original contract as approved by the City Council in June of 2010. Sunset Ridge Park With the project CDP application deemed complete and a CCC hearing on the Park proposal upcoming in the next several months, we will work with CCC staff to garner a staff recommendation of approval and the approval of the Coastal Commissioners. As CCC staff indicated in their Notice of Complete Determination correspondence that the access alternatives analysis initially submitted did not address their concerns that there is a superior alternative than that proposed for access to the Park, we needed to work with City staff in preparing responsive materials. In addition, as the hearing approaches and the project opponents continue to wage their misinformation campaign, we are continuing to work with City and CCC staff to address raised issues. Accordingly, additional meetings with CCC staff and additional responsive analyses and correspondences are necessary. Activity Details Est. Cost of Services CDP Application Preparation: Due to related enforcement An additional $4,548.50 $4,548.50* actions and opposition, additional efforts were undertaken to previously invoiced ensure a strong and responsive application submittal and such efforts went beyond the original estimate. NOV: Additional efforts to assist with previous CCC hearing on NOV /ESHA Issue: $887.50 $887.50' NOV. CDP Application Processing /CCC Staff Meetings: An additional $5,189* $37,689 Coordination with City staff** (including meetings and previously invoiced conference calls as requested) to prepare additional analysis of and and data /exhibits related to access design and project plan 60 hrs @ $175/hr plus revisions. Meetings with CCC staff to present these items. 80 hrs @ $275/hr Additional site visits. Assist City in preparing supplemental responsive submittal items to CCC. Advocacy Meetings with State Officials and Coastal An additional $2,361.50* $31,611.50 Commissioners;. Assist City in responding to opposition's previously invoiced misinformation campaign about project. and 10 hrs @ $175/hr plus 100 hrs P, $275/hr Reimbursable ex erises travel, reprographics, etc. $1,500 Total: $76,236.50 * These items are for activities already invoiced therefore the cost of services for these two items shown represent actual. *` Assumes City staff will be preparing any necessary engineering plans and calculations. SfiHMIT'l� %dSSU(IAT��S INC" SCHMITZ & ASSOCIATES, ]N.C. HEADQUARTERS - MALIBU OFFICE REGIONAL - CONEJO VALLEY OFFICE 29350 PACIFIC COAST Hwy, SUITE 12 5234 CHESEBRO ROAD, SUITE 200 MALIBU, CA 90265 AGOURA HILLS, CA 99301 TEL: 310.589.0773 FAx: 310.589.03.53 TEL: 818.338..3636 FAX 818.338.3423 EMAIL: 'INFOa.,SCHM ITZANRASSOCIATES. NET WEBSITE: WWW.SCHMITZANDASSOCIATES.COM Marina Park We have also been requested to further assist with the pending boundary agreement with State Lands Commission. In addition, as new Commissioners joined the California Coastal Commission this summer, we anticipate that additional time will be needed to inform these new Commissioners of the project's merits and potentially to take them to the site before the hearing. The following represents our proposed efforts. Activity Est. Hours Est. Cost of Services Meetings with State Lands Commissioners and Governor's 25 @ $275/hr $12,875 Office. Includes Sacramento consultant's proposal. Plus sub - consultant's $6,000 Preparations with City staff for SLC hearing; includes 10 hrs @ $165/hr $4,400 coordination with Sacramento consultant and Commissioner's plus 10 hrs @ offices. $275/hr Communications /Meetings with City staff on this matter. 6 hrs @ avg. $1,200 $200 /hr Additional time for advocacy communications with Coastal 40 hrs @ $275/hr $11,000 Commissioners regarding pending CDP application in light of new Commissioners joining this summer. Reimbursable ex enses travel, reprographics, etc. $1,500 Total: $30,975 Should you have any questions, please do not hesitate to contact us at (818)338 -3636. We thank you again for this opportunity to be of assistance to the City on these two important projects. Sincerely, SCHMITZ & ASSOCIATES, INC. Ah -;Jaw Donna Tripp Regional Manager CERTIFICATE OF INSURANCE CHECKLIST City of Newport ort Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Dale Received: 10 -07 -11 Dept. /Contact Received From: Date Completed: 10 -13 -11 Sent to: Company /Person required to have certificate: Type of contract: Moore Tania By: Joel. Schmitz and Associates All others I. GENERAL LIABILITY EFFECTIVE /EXPIRATION DATE: 8 -15 -2012 EFFECTIVE /EXPIRATION DATE: 8 -15 -12 A. INSURANCE COMPANY: Famrers Insurance Group A. B. AM BEST RATING (A-: VII or greater): C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? E Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? 2,000,000 E. ADDITIONAL INSURED ENDORSEMENT — please attach E Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does for Waste Haulers): What is limits provided? 1,000,000 not apply to Waste Haulers or Recreation) E Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND (What is limits provided ?) COMPLETED OPERATIONS ENDORSEMENT (completed F. Operations status does not apply to Waste Haulers) E Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City Haulers only): E N/A ❑ Yes its officers, officials, employees and volunteers): Is it G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A included? ® Yes ❑ No H. PRIMARY & NON- CONTRIBUTORY WORDING (Must be E Yes ❑ No included): Is it included? E Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes E No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): E N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A E Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE /EXPIRATION DATE: 8 -15 -12 A. INSURANCE COMPANY: Farmers Insurance Group B. AM BEST RATING (A-: VII or greater) C. ADMITTED COMPANY (Must be California Admitted): Is Company. admitted in California? E Yes ❑ No D. LIMITS (Must be $1M 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 ?) F. PRIMARY & NON- CONTRIBUTORY WORDING (For Waste Haulers only): E N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes E No H. NOTICE OF CANCELLATION: ❑ N/A E Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE /EXPIRATION DATE: 8 -15 -11 A. INSURANCE COMPANY: State Compensation Insurance Fund B. AM BEST RATING (A-: VII or greater): Not Rated C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) $1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N /A. ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No 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? Approved: f 10 -I3 -2011 Agent of Alliant Insurance Services Date Broker of record for the City of Newport Beach ❑ N/A ❑ Yes ❑ No 0 N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ❑ Yes ❑ No. RISK MANAGEMENT APPROVAL REQUIRED (Non- admitted carrier rated less than _ Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval /exception /waiver: Approved: Risk Management * Subject to the terms of the contract. Date m� a�ww ,a City of NEWPORT BEACH October 7, 2011 Schmitz & Associates 29350 Pacific Coast Hwy #12 Malibu, CA 90265 Dear Vendor: Thank you for your certificate submission to the City of Newport Beach. You are currently compliant! Please remember to send any changes in coverage, and renewal certificate(s) prior to expiration. Thank you, City of Newport Beach Policy Number: Date Entered: 9/15/2011 A' ®® CERTIFICATE E ®F LIABILITY tl INSURANCE 5/28/20D o ) 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 pollcy(ies) 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 certificate holder in lieu of such endorsement(s). PRODUCER H.W. Baker Insurance Inc. 29169 Heathercliff 0210 Malibu Ca. 90265 C-20"T. TMichelle Taramillo PHONE -5092 -6225 ,(31)7 a: EaD'M^IDRELSS: michelleQbwbaker.com GENERALLIASBITY INSURERSAFFORDINGCOVERAGE NNCR INSURERA:Farmera Insurance Group A 21628. $2,000,000 INSURED Schmitz & Associates, Inc. INSuRERIB:State Fund XA ^ Donald Schmitz INSURER C: Farmers Insurance Group A /1512011 INSURER 0: ronshore Specialty Insurance PRFJAISES Eaomurw Ca 29350 Pacific Coast Hwy 0 12 INSURER E: $5,000 Malibu, CA 90265 INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED A90VE 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 ADM IN - 3 POUCYNUMBER POJC EFF MMIDD PdLTCY P MMRID LIMITS GENERALLIASBITY EACHOCCURRENCE $2,000,000 COMMERCIAL GENERAL LIABILITY CIAIMS-MADE Im OCCUR XA ^ X 094160568 /1512011 /15/2012 PRFJAISES Eaomurw Ca $75,000 MEDEXP( om ) $5,000 I PERSONALSADV INAIRY E 2,000,000 GENERALAGGREGATE $4,000,000 GEHL AGGREGATE LIMITAPPLIES PER: PRODUCTS- COMYIOPAGG ,82.000,000 POLICY PRO- LOC IFQ.T F1 S A AUTOMOBILE LIABILITY ANY AUTO Es COMBINED am SINGLE LIMIT $1,000,000 BODILY INJURY (Pat person) 3 ALLOVMEO SCHEDULED AUTOS AUTOS BODILY INJURY saltleN) 8 PPROIPEaTY DAMAGE 3 HIREDAUTOS AMNOSNMEO 094160568 - /15/2011 /15/2012 $ C uwmuuLIAe INAII OCCUR EACH OCCURRENCE $1,000,000 AGGREGATE $1,000,000 EXCESS LmB CLAIMSMADE 094122894 /15/2011 /15/2012 BED RETENnON3SO,OLIO $ WORKERS CDMPENSAMON Al WCSTATLL OTRH- .B YIN ANYPRCPRIEfORRARTNERI ECMV,B OFFICERIMEMBEREXCLUMD4 ©. (MalMal"MNH) NIA X 562000228308 1/1/2011 1/1/2012 E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE - EA EMPLOYEE $110001000 B yyS6 aesvl0 unaar DESCRIPTION OF OPEMTIONS OeIOw EL. DISEASE -. POLICY LIMIT S 1,000,000 D E &O Policy XIX.000767700 0/25/2011 0/21/2012 claims made $2,000,000 retention:25H DESCRIPTION OF OPERATIONS! LOCATORS I VEHICLE$ (Atlach ACORO tot,Maitloml Renu,Ye SaIwtlWO, ll moro space la rayulroa) certificate holder is added as additional insured I endorsment attached City Of Newport Beach 3300 Newport Blvd PO Box 1768 Newport Beach, CA 92658 ACORD 25: (2010105) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUnIDRD7:D REPRESENTATVE ©1988 -2010 The ACORD name and logo are registered marks of ACORD Produced usino Forms Boss Plus software. Y .Fonnsooss.Lwm; Impressive Publishing 800 - 208.1977 POLICY NUMBER: 094160568 COMMERCIAL GENERAL LIABILITY Schmitz ra Associates, Inc THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSUREID - OWNERS, LESSORS OR CONT'RACT'ORS (FORM B) This endorsement modifies insurance provide the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Professional Service Agreement for California Coastal application of Marina Park and Sunset Ridge Park Name of Person or Organization: City of Newport Beach 3300 Newport Blvd PO BOX 1768 Newport Beach, CA 92658 (If no entry appears above, information required to complete this endorsement will be shown in the declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the schedule, but only with respect to liability arising out ofyour completed and ongoing operations perforated for that insured. Al endorsement: City of Newport Beach, Owner and other parties as required by owner listed above are hereby named as additionally insured as respects any claim, loss or liability arising out of the insured's performance of the work under its contract with the City of Newport Beach. Insurance coverage provided is primary as respects the interest of the City of Newport Beach and any other insurance maintained by the City of Newport Beach is excess and non - contributory with the insurance required hereunder. CG 20 10 1185 Copyright, Insurance services Offices, Inc., 1992 POLICY NUMBER: 094160568 Schmitz & Associates, Inc COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER RIGHTS OF RECOVER' AGAINST OTHERS TO US This endorsement modifies insurance provide the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Professional Service Agreement for California Coastal application of Marina Park and Sunset Ridge Park Name of Person or Organization: City of Newport Beach 3300 Newport Blvd PO BOX 1768 Newport Beach, CA 92658 (If no entry appears above, information required to complete this endorsement will be shown in the declarations as applicable to this endorsement) The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV — COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive the right of recovery we may have against the person or organization shown in the schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products- completed operations hazard ". This waiver applies only to the person or organization shown in the Schedule above. CG 24 04 1093 Copyright, Insurance Services Offices, Inc.; 1992 POLICY NUMBER: 562000228308 Schmitz & Associates, Inc. WORKER'S COMPENSATION THIS ENDORSEMENT. CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT -- CALIFORNIA This endorsement modifies insurance provide the following: WORKER'S COMPENSATION COVERAGE PART SCHEDULE Professional Service Agreement for California Coastal application of Marina Park and Sunset Ridge Park Name of Person or Organization: City of Newport Beach 3300 Newport Blvd PO BOX 1768 Newport Beach, CA 92658 (If no entry appears above, information required to complete this endorsement will be shown in the declarations as applicable to this endorsemenL) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that your performed and ongoing work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees white engaged in the work described in the schedule. CG 24 14 10 93 Copyright, Insurance Services Offices, Inc., 1992 o��EwPOq � CITY OF NEWPORT BEACH c� City Council Staff Report ;naa Item No. 11 September 13, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David Webb, Deputy Director of Public Works 949 - 644 -3311, dawebb @newportbeachca.gov PREPARED BY: Michael J. Sinacori, P.E. APPROVED: G ILA TITLE: SUNSET RIDGE PARK AND MARINA PARK PROJECT — APPROVAL OF PROFESSIONAL SERVICES AGREEMENT AMENDMENT NO. 3 WITH SCHMITZ & ASSOCIATES ABSTRACT: The City entered into a Professional Services Agreement with Schmitz & Associates, Inc., for Coastal Development Permit (CDP) preparation and processing support services for the Sunset Ridge Park and Marina Park projects. Additional services are required for supplemental analyses, meetings, and correspondence to address California Coastal Commission (CCC) issues. RECOMMENDATION: Approve Amendment No. 3 to the PSA with Schmitz & Associates, Inc. (Schmitz) of Malibu, California for California Coastal Commission application preparation and processing support services at a cost of $107,211.50, and authorize the Mayor and the City Clerk to execute the Amendment. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this contract. $76,236.50 will be expended from the Sunset Ridge Park Project account No. 7412- C5100515; and $30,975.00 will be expended from the Marina Park project account No. 7411- C4002002. DISCUSSION: On June 8, 2010, City Council selected Schmitz, to prepare the Coastal Development Permits (CDP) and assist in processing both the Sunset Ridge Park and Marina Park projects through the Coastal Commission permit processing. On November 30, 2010, APPROVAL OF PROFESSIONAL SERVICES AGREEMENT AMENDMENT NO. 3 WITH SCHMITZ & ASSOCIATES September 13, 2011 Page 2 and April 22, 2011, the City and Schmitz entered in PSA Amendment No. 1 and 2, respectively, in response to unexpected issues raised by CCC and State Lands. Sunset Ridge Park This project has been moving forward despite hurdles raised by the Banning Ranch Conservancy (BRC) as well as additional information requested by the CCC staff. The CCC staff has required the City to produce additional reports, engineering drawings, conduct numerous site visits and provide other follow -up information to address their concerns. These requests consumed additional City and project consultant resources, and resulted in an increase in the scope of services required of Schmitz. In addition to the efforts necessary to process the CDP for the project, Schmitz worked with the City in addressing a Notice of Violation issued by the Coastal Commission within the project site area.' Even though the Notice of Violation was for a period that the City did not own the property, nor did the City cause the alleged violation, it was determined that the City should take the "High Road" and play an active role in resolving the violation so as to allow the project CDP application to move forward. This issue was resolved in April 2011, however resolution demanded considerable assistance from Schmitz. Given the continuing active resistance to the project being displayed by the BRC, staff anticipates additional meetings, correspondence, and analyses will be needed to respond to any future issues raised by CCC and /or BRC. It is anticipated that a hearing on this project could be as early as October 2011. Marina Park Schmitz has also been activity engaged in the preparation and filing of the Marina Park CDP application. Marina Park's CDP application was filed in October 2010. However a recent boundary dispute with the State Lands Commission required some unanticipated assistance by Schmitz to engage the Lieutenant Governor's office in resolving the tidelands boundary. This assistance was necessary as the CCC staff would not further our CDP permit for this project until a tideland boundary agreement with the State Lands Commission had been obtained. Neither the issues with the State Lands Commission nor the additional meetings with CCC staff to move this application forward were originally anticipated. The scope of work covered by Amendment No. 3 includes additional CDP application preparation efforts, public outreach and clarification of misinformation, meetings and other project avocation efforts. APPROVAL OF PROFESSIONAL SERVICES AGREEMENT AMENDMENT NO. 3 WITH SCHMITZ & ASSOCIATES September 13, 2011 Page 3 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Certified Environmental Impact Reports have been completed and approved for both Sunset Ridge Park and Marina Park projects. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: David Webb Deputy Director of Public Works Attachment: A. Amendment No.3 to Professional Services Agreement AMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. FOR CALIFORNIA COASTAL COMMISSION APPLICATIONS FOR MARINA PARK AND SUNSET RIDGE PARK THIS AMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT ( "Amendment No. Three "), is entered into as of this day of , 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and SCHMITZ & ASSOCIATES, INC., a California Corporation whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California 90265 ( "Consultant "), and is made with reference to the following: RECITALS: A. On July 22, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for preparation and processing of the California Coastal Commission's Coastal Development Permits Applications services for the Marina Park and Sunset Ridge Park ( "Project "). B. On November 30, 2010, City and Consultant entered into Amendment No. One to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. One "). C. On April 22, 2011, City and Consultant entered into Amendment No. Two to the Agreement to increase the scope of work, increase the total compensation and update the insurance requirements. D. City desires to enter into this Amendment No. Three to reflect additional services not included in the Agreement or prior Amendments, to extend the term of the. Agreement to December 31, 2012, to increase the total compensation and update insurance requirements. E. City and Consultant mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement, as amended shall be amended in its entirety and replaced with the following: The term of the Agreement shall terminate on December 31, 2012, unless terminated earlier as provided for in Agreement. 2. SERVICES TO BE PERFORMED Section 2 of the Agreement, as amended shall be supplemented to include the Scope of Services dated July 26, 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. 3. COMPENSATION The introductory paragraph to Section 4 of the Agreement, as amended shall be amended in its entirety and replaced with the following: City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the Agreement. Consultant's total amended compensation for all work performed in accordance with this Agreement and all prior amendments, including all reimbursable items and subconsultant fees, shall not exceed Three Hundred Thousand, Five Hundred Thirty -Six Dollars and 50/100 ($300,536.50) without prior written authorization from City ( "Total Amended Compensation "). No billing rate changes shall be made during the term of this Agreement without the prior written approval of the City. 3.1 The Total Amended Compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. Three, including all reimbursable items and subconsultant fees, in an amount not to exceed One Hundred Seven Thousand, Two Hundred Eleven Dollars and 50/100 ($107,211.50), without prior written authorization from City. 4. INSURANCE Section 4 of the Agreement shall be'amended in its entirety and replaced with the following: Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Consultant, his agents, representatives, employees. or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders` Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key'Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all. of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non - payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall. be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 5. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Three on the dates written below. APPROVED AS TO FORM: OFFIC FBI ITYATTORNEY Date: 1 "J �� M Assistant City Attorney V ATTEST: Date: CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Michael F Mayor Henn CONSULTANT: SCHMITZ & ASSOCIATES, INC., a California Corporation Date: By: By: Leilani I. Brown Donald W. Schmitz, ll, AICP City Clerk Chief Executive Officer and Chief Financial Officer Attachment: Exhibit A — Additional Services to be Performed with.schedule of billing rates i ; � � ® -/ �i July 26, 2011 Via Email c/o Michael Sinacori Dave Webb and Michael J. Sinacori City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Sunset Ridge Park and Marina Park Projects Dear Messrs. Webb and Sinacori: Schmitz & Associates is pleased to continue to have the opportunity to be of assistance to the City of Newport Beach on the Sunset Ridge Park and Marina Park projects. This correspondence serves to provide you with a supplemental estimate as requested by you at present for our services beyond our original contract as approved-by the City Council in June of 2010. Sunset Ridge Park With the project CDP application deemed complete and a CCC hearing on the Park proposal upcoming in the next several months, we will work with CCC staff to garner a staff recommendation of approval and the approval of the Coastal Commissioners. As CCC staff indicated in their Notice of Complete Determination correspondence that the access alternatives analysis initially submitted did not address their concerns that there is a superior alternative than that proposed for access to the Park, we needed to work with City staff in preparing responsive materials. In addition, as the hearing approaches and the project opponents continue to wage their misinformation campaign, we are continuing to work with City and CCC staff to address raised issues. Accordingly, additional meetings with CCC staff and additional responsive analyses and correspondences are necessary. Activity Details Est. Cost of Services CDP Application Preparation: Due to related enforcement An additional $4,548.50 $4,548.50' actions and opposition, additional efforts were undertaken to previously invoiced ensure a strong and responsive application submittal and such efforts went beyond the original estimate. NOV: Additional efforts to assist with previous CCC hearing on NOV /ESHA Issue: $887.50 $887.50" NOV. CDP Application Processing /CCC Staff Meetings: An additional $5,189' $37,689 Coordination with City staff" (including meetings and previously invoiced conference calls as requested) to prepare additional analysis of and and data /exhibits related to access design and project plan 60 hrs @ $1751hr plus revisions. Meetings with CCC staff to present these items. 80 hrs @ $275/hr Additional site visits. Assist City in preparing supplemental responsive submittal items to CCC. Advocacy Meetings with State Officials and Coastal An additional $2,361.50` $31,611.50 Commissioners; Assist City in responding to opposition's previously invoiced - misinformation campaign about project and , 10 hrs @ $1751hr plus 100 hrs @ $275/hr Reimbursable ex enses travel, reprographics, etc.) $1, 500 Total: 1 $76,236.50 These items are for activities already invoiced therefore the cost of services for these two items shown represent actual. "Assumes City staff will be preparing any necessary engineering plans and calculations. SCHMITZ & ASSOCIATES. INC. HEADQUARTERS - MALIBU OFFICE REGIONAL - CONEJO VALLEY OFFICE 29350 PACIFIC COAST Hwy, SUITE 12 5233 CHESEBRO ROAD, SUITE 200 �*�Qy�xet MALIBU, CA 90265 AGOURA HILLS, CA 91301 i2J�Yn1 _ _ 7c. Q1n GAO !1791 Cnv- 1111 FAO r11S1 Tc, - AIR 11A 1919 C,1v AIR 11R 344 13 Marina Park We have also been requested to further assist with the pending boundary agreement with State Lands Commission. In addition, as new Commissioners joined the California Coastal Commission - this summer, we anticipate that additional time will be needed to inform these new Commissioners of the project's merits and potentially to take them to the site before the hearing. The following represents - our- proposed.efforts., Activity Est Hours Est. Cost of Services Meetings with State Lands Commissioners and Governors 25 @ $275 /hr $12,875 Office. Includes Sacramento consultant's proposal. Plus sub- consultant's $6,000 Preparations with City staff for SLC hearing; includes 10 hrs @ $165 1hr $4,400 coordination with Sacramento consultant and Commissioners plus •10 hrs @ offices. $2751hr Communications /Meetings with City staff on this matter. 6 hrs @ avg. $1,200 $200 /hr Additional time for advocacy communications with Coastal 40 hrs @ $275 /hr $11,000 Commissioners regarding pending CDP application . in light of new Commissioners moining this summer. Reimbursable expenses travel reprographics, etc. $1,500 Total: $30,975 Should you have any questions, please do not hesitate to contact us at (818)338 -3636. We thank you again for this opportunity to be of assistance to the City on these two important projects. Sincerely, SCHMITZ & ASSOCIATES, INC. 04ubt, Donna Tripp Regional Manager e AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT WITH SCHMTZ & ASSOCIATES, INC. FOR CALIFORNIA COASTAL COMMISION APPLICATIONS OF MARINA PARK AND SUNSET RIDGE PARK THIS AMENDMENT NO. TWO TO PROFESSIONAL SERV CEpS� AGREEMENT � ( "Amendment No. Two "), is entered into as of this ay of NI, 12011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and SCHMITZ & ASSOCIATES, INC., a California Corporation whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California 90265 ( "Consultant "), and is made with reference to the following: RECITALS: A. On July 22, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for the preparation and processing of the California Coastal Commission's Coastal Development Permit Applications for Marina Park and Sunset Ridge Park ( "Project "). B. On November 30, 2011, City and Consultant entered into Amendment No. One to the Agreement to increase the scope of work and increase the total compensation ( "Amendment No. One "). C. City desires to enter into this Amendment No. Two to reflect additional services not included in the Agreement or prior Amendment, to increase the total compensation and update insurance requirements. D. City and Consultant mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement, as amended, shall be amended in its entirety and replaced with the following: The term of the Agreement shall terminate on June 30, 2012, unless terminated earlier as provided for in Agreement. 2. SERVICES TO BE PERFORMED Section 2 of the Agreement, as amended, shall be supplemented to include the Scope of Services dated April 5, 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. 3. COMPENSATION The introductory paragraph to Section 4 of the Agreement, as amended, shall be amended in its entirety and replaced with the following: City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the Agreement. Consultant's total amended compensation for all work performed in accordance with this Agreement and all prior amendments, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Ninety -Three Thousand, Three Hundred Twenty -Five Dollars and no /100 ($193,325.00) without prior written authorization from City ( "Total Amended Compensation "). No billing rate changes shall be made during the term of this Agreement without the prior written approval of the City. 3.1 The Total Amended Compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. Two, including all reimbursable items and subconsultant fees, in an amount not to exceed Eighteen Thousand, Four Hundred Fifty Dollars and no /100 ($18,450.00), without prior written authorization from City. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement, as amended, shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Two on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: / 'r THE Leonie Mulvihill Assistant City Attorney ATTEST: LL II Date: By: A VU Leilani I. Brown City Clerk CA U CITY OF NEWPORT BEACH, A California municipal corporation Date: 412011 By: rr_ Cr>tit J Dave an City Manager CONSULTANT:SCHMITZ & ASSOCIATES, INC., a California Corporation Date: By: Donald W. Schmitz, ll, AICP Chief Executive Officer and Chief Financial Officer Attachment: Exhibit A- Additional Services to be Performed __ �_ �� � )` �� lr, U \\ ��� L � � L I �! �L'tl April 5, 2011 Via Email c/o Michael Sinacori Dave Webb and Michael J. Sinacori City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Sunset Ridge Park Project Dear Messrs. Webb and Sinacori: Schmitz & Associates is pleased to continue to have the opportunity to be of assistance to the City of Newport Beach on the Sunset Ridge Park project. This correspondence serves to provide you with a supplemental estimate for our services beyond our original contract as approved by the City Council in June of 2010. In light of the City having been named a party in October 2010 in the CCC Notice of Intent (NOI) to Commence CDO and RO Proceedings which will be considered by the CCC this month, we have undertaken many activities related to this issue and will continue to advise and represent the City as requested on this enforcement matter. As you can see from our invoice dated April 5, 2011, our past efforts related to this CCC enforcement matter exceeded that previously estimated. In light of this fact and as we have been requested to also assist the City in its presentation before the CCC at the April 14, 2011 CCC hearing on this enforcement matter, we are submitting the following second supplemental budget for our services. Activity Est. Hours Est. Cost of Services CCC Enforcement Matter: Advise the City as 19 his @ $18,450 requested on options and strategies pertaining to $175/hr plus resolution of the CCC Enforcement Action and as it 55 hrs @ relates to the pending CDP application for the Park $275/hr project. Assist the City in preparing a presentation and representation of the City before the CCC at its April 14, 2011 hearing. Ongoing communications with CCC staff to advocate Park project as presently desi ned. Grand To $18.450 Should you have any questions, please do not hesitate to contact us. Sincerely, SCHMITZ & ASSOCIATES, INC. r Donna Tripp Regional Manager �1 HEADOUARTERS - MALIBU OFFICE REGIONAL - CONEJO VALLEY OFFICE Q�j�� /`A�� , .�{�d /t� 11 q�il� 29350 PACIFIC COAST HWY, SUITE 12 5234 CHESEBRO ROAD, SUITE 200 1:a Jf} I. — i sA. ; L ti ',i4:: MALIBU, CA 90265 AGOURA HILLS. CA 91301 PROVIDERS OF LAND USE PLANNING TEL 310.589.0773 FAX 310.589.0353 TEL: 818.338.3636 FAX: 818.338 3423 FOR A BETTER COMMUNITY EMAIL: INFO @SCHI,II'rZANDASSOCIATES.NET WEBSITE: WWW.SCIAMITZANDASSOCIATES.COM AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. FOR CALIFORNIA COASTAL COMMISSION APPLICATIONS OF MARINA PARK AND SUNSET RIDGE PARK THIS AMENDMENT NO. ONE TO PROFESSIONAL SER I S REEMENT ( "Amendment No. One'), is entered into as of this day of I% 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "CITY "), and SCHMITZ & ASSOCIATES, INC., a California Corporation whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California 90625 ( "CONSULTANT "), and is made with reference to the following: RECITALS: A. On July 22, 2010, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for the preparation and processing of the California Coastal Commission's Coastal Development Permit Applications for Marina Park and Sunset Ridge Park ( "Project "). 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. SCOPE OF WORK Section 2 of the Agreement shall be amended hereby and the following is substituted in its entirety. In addition to the services to be provided pursuant to the Agreement and this Amendment No. One, Consultant shall diligently perform all the services described in this Amendment No. One including, but not limited to, all work set forth in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 2. COMPENSATION The introductory paragraph to Section 4 shall be amended hereby and the following is substituted in its entirety. 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 filling 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 One Hundred Seventy -Four Thousand, Eight Hundred Seventy -Five Dollars and no/100 ($174,875.00) 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 Twenty Thousand One Hundred Twenty -Five Dollars and no/100 ($20,125.00), 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 date first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Leonie Mulvihill Assistant City Attorney /_hili*3S By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California Municipal Corporation By: z G. DavldA. Kiff City Manager CONTRACTOR: SCHMITZ & ASSOCIATES, INC. By: Donald W. Schmitz II, AICP, Chief Executive Officer and Chief Financial Officer Attachment: Exhibit A — Additional Services to be Performed Page 12 amber 1, 2010 : -mail c/o Dave Webb and Michael Sinacori Dave Webb and Michael J. Sinacori City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Sunset Ridge Park and Marina Park Projects Dear Messrs. Webb and Sinacori: This correspondence and change order is prepared and submitted pursuant to your request with respect to the above - referenced two City Park projects. As you are aware, our initial contract proposal approved by the City Council in June, 2010 was for a total of $51,250 for the Sunset Ridge Park project, and $54,750 for the Marina Park CDP Application #1 and $48,750 for the Marina Park CDP Application #2, for a grand total of $154,750. As the below . summaries outline, additional consulting services beyond the scope for that originally contracted were requested by the City. These additional services for both projects are estimated to total $68,875. As it was subsequently decided by the City to pursue only one CDP Application process for the Marina Park project, the $48,750 authorized for the second Marina Park application may be applied to this change order request. This leaves an additional. $20,125 in excess of that originally contracted and approved. Sunset Ridge Park Per our discussion on June 17, 2010, you indicated that the City of Newport Beach would like for Schmitz & Associates to proactively respond to the Sunset Ridge Park project opposition's coordinated efforts with the CCC by proceeding with presenting accurate information and the project merits to the Coastal Commission. This activity is to specifically rebut the misinformation being presented by the project opponents and is separate from the advocacy work we will be doing for the submitted CDP application. In addition, in July of 2010, you requested our assistance with a CCC Notice of Violation which impacts the Sunset Ridge Park. These activities have included thus far (and are anticipated to continue to include) regular meetings with you and project consultants, communications /site and office meetings with CCC Staff, and advising the City on options for proceeding with the Sunset Ridge Park application in light of a possible ESHA determination and /or Restoration Order. As these activities were not contemplated in our original, approved contract/not -to- exceed budget, the following is a supplemental estimate for these specific activity: Adfic SCHMITZ & ASSOCIATES. INC. HEADQUARTERS - MALIBU OFFICE REGIONAL - CONEJO VALLEY OFFICE 29350 PACIFIC COAST Hwy, SUITE 12 5234 CHESEBRO ROAD, SUITE 200 MALIBU, CA 90265 AGOURA HILLS, CA 91301 PROVIDERS OF LAND USE PLANNING TEL: 310.589.0773 FAX: 310.589.0353 TEL: 818.338.3636 FAX: 818.338.3423 FOR A BETTER COMMUNITY EMAIL: INFO @SCHMITZANDASSOCIATES.NET WEBSITEI W W W.SCHMITZANOASSOCIATES.CON Activity Est. Hours Est. Cost of Services Opposition Response: Communications with City staff 50.5 hrs @ $20,625 regarding advocacy strategy. Preparation of $275 hrs and presentation materials for use in meetings with 38.5 hrs @ Commissioners and for use during public comments at avg. $175 /hr CCC hearing. Communications with CCC Senior Staff. Communications /Meetings with Coastal $2,000 Commissioners.` Presentation of our response to $14,000 opposition during public comments at an upcoming CCC hearing.** Related travel costs for meetings with Commissioners $5,000 and other reimbursable expenses. CCC Violation /ESHA Matter: Meetings with and 70 hrs @ $29,250 advise City staff and consultants; meetings with CCC $275 /hr and staff. Preparation for and possible representation of 57 hrs @ City before CCC at enforcement hearing CDO /RO . avg. $1751hr Grand Total: $54,875 `These meetings /discussions with Commissioners are anticipated to be spread out over several months. " As we noted in our discussion, it is still to be determined as to whether such a presentation at a CCC hearing is an optimal and strategic approach at this time. If it is determined to be so, this estimate assumes a local hearing location is selected to minimize associated travel costs. Marina Park In July of 2010, you requested that Schmitz & Associates assist with the State Lands Commission jurisdictional boundary issue as the resolution of this matter is critical to the project design /proposal and thus the Coastal Development Permit process (note: SLC resolution will be required by the CCC). Activity Est. Hours Est. Cost of Services State Lands Commission: Communications/ meetings 15 hrs @ $12,000 with City staff regarding advocacy strategy. Analysis of $275/hr and applicable policies and precedent related to tidelands, 47.7 hrs @ boundary delineations, water grants, etc. and advise avg. $165/hr City of the same. Related travel costs. $2,000 Grand Total: $14,000 Should you have any questions or require any additional information, please do not hesitate to contact us. Thank you for the opportunity to continue to assist the City with these two outstanding projects. Sincerely, SCHMITZ & ASSOCIATES, INC. Donna Shen Tripp Regional Manager • • qsq� PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. FOR CALIFORNIA COASTAL COMMISSION APPLICATIONS OF MARINA PARK AND SUNSET RIDGE PARK THIS AGREEMENT is made and entered into as of this day of A 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and SCHMITZ & ASSOCIATES, INC., a California corporation whose address Is 29350 Pacific Coast Highway, Suite 12, Malibu, California, 90265 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to apply for Coastal Development Permits from the California Coastal Commission for Marina Park and Sunset Ridge Park. C. City desires to engage Consultant to provide professional services in the preparation and processing of the California Coastal Commission's Coastal Development Permits Applications for Marina Park and Sunset Ridge Park ( "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 Donald W. Schmitz, Il, AICP. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 3151 day of December, 2011, unless terminated earlier as set forth herein. 9 0 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Fifty -Four Thousand, Seven Hundred Fifty Dollars and no /100 ($154,750.00) 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. Professional Services Agreement Page 2 • • 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated DONALD W. SCHMITZ II, AICP to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel fisted 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. MIKE SINACORI, 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 Professional Services Agreement Page 3 • • authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 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 worts, 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. Professional Services Agreement Page 4 • 0 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to 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. Professional Services Agreement Page 5 12. CITY POLICY 0 Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, 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. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000) for Consultant's employees in accordance with the laws of the State of al Services Agreement Page 6 • 0 California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employee's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subro aq tion. 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 Professional Services Agreement Page 7 • 0 imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any parry or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at Its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 16. SUBCONTRACTING The parties recognize that a substantial Agreement is the professional reputation, Assignments of any or all rights, duties Agreement will be permitted only with the shall not subcontract any portion of the H without the prior written authorization of City. inducement to City for entering into this experience and competence of Consultant. )r obligations of the Consultant under this express written consent of City. Consultant ork to be performed under this Agreement Professional Services Agreement Page 8 • • 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: Mike Sinacori Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 6443342 Fax: 949 - 6443318 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Donald W. Schmitz 11, AICP Schmitz & Associates, Inc. 29350 Pacific Coast Highway, Suite 12 Malibu, CA 90265 Phone: 310 - 589 -0773 Fax: 310- 589 -0353 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 regulations and requirements of all governmental entities, or municipal, whether now in force or hereinafter enacted. by Consultant shall conform to applicable City, county, regulations and permit requirements and be subject Administrator and City. 29. WAIVER 0 with all statutes, ordinances, including federal, state, county In addition, all work prepared state and federal laws, rules, to approval of the Project 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: ynett` D. Beau mp, Assistant City tt ney ATTEST: �- Leilani I. Brown, City Clerk t ��Ra � V- IFCi CITY OF NEWPORT BEACH, A Municipal Corporation By: l Keith D. Curry, Mayor CONSULTANT: SCHMITZ & ASSOCIATES, INC. By: -"/i Donald W. Schmitz II, AICP, Chief Executive Officer and Chief Financial Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Professional Services Agreement Page 13 L F Policy Number: Date Entered: CERTIFICATE OF LIABILITY INSURANCE °'. 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(ies) 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 certificate holder in lieu of such endomement(s). PRODUCER I CONTACT H.W. Baker Insurance Inc. 29169 Heatharclif£ #208 Malibu Ca. 90265 Lic #OB49439 INSURED Schmitz s Associates, Inc. Donald Schmitz 29350 Pacific Coast Hwy If 12 Malibu, CA 90265 "A "c ua_Fm (310)457 -5092 E.LtAR BRE55' michelle @bwbaker.com AB PRODUCER CUSTOMER ID d- _ INSURER(S) AFFORDING COVER. INSURER A: FzTmerS Insurance GrOUP INSURER B: State fund INSURER C: Farmers Insurance Group INSURER D: Landmark Insurance A+ INSURER E: A A COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: 457 -6225 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, ACCORDANCE WITH HE POLICY PROVISIONS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. PO BOX 1768 Newport Beach, CA 92658 ILTR TYPE OF INSURANCE DOL =W POLICY NUMBER POLICY EFF POLICY EXP LIMITS GENERAL LIABILITY I EACH OCCURRENCE 52 OOO OOO A COMMERCIAL GENERAL LIABILITY X X 10 94 160 568 18/15/2009 8/15/2010 DAMAGE TO RENTED PREMISes tEa OC4nenC ) I350�g00 LLAIMS-MADE Ix OCCUR I 1 MED EXP (Any one parson) _ is _ _ D 860 P91/.S,'Y �LHR810414 170/23/200 10/23/201 PERSON.M.6 VIN JD RY s2 OOO 000 _. S 2 AOOOI 090. GENERAL AGGREGATE GEN'LAGGREGATE LIMIT APPLIES PER PRODUCTS- COMPIOP AGO s2 000 000 POLICY PRP LOC PC, $ AUTOMOBILE LIABILITY I COMBINED SINGLE LIMIT 31,000,000 (Ea aaldCnt) A - _1 ANY AUTO �X I BODILY I WURYIPerpereon) ,S ALL OWNED AUTOS BODILY INJURY (Per aaitlEnl)1 3S _ ScHEOULEn quTOS ',099160568 '8/15/2009 8/15/2010 - P YOAMAGE HIREDAUTOS IPdraaien[) maid is NONOWNED AUTOS C.• UMBRELLA LIAB OCCUR EACH OCCURRENCE IX Excess MAB CLNMSWAOE! '094122894 •8/15 /200918 /15/20101 .;91,000,000 AGGREGATE 31,000,000 DEDUCTIBLE ------------ RETENTION 3 WORKERS COMPENSATION WC ST ATW 0TH, AND EMPLOYERS' LIABRATY Y N . TORY LIMITS ER ANY PROPRIETORIPARTNERIEXECUTIVE B OFFICEWMEMBER EXCLUDED? NIA X E.L. EACH ACCIDENT $1,000,000 (M anIIIAo y In NH) 562000228308 11/1/2009 11/1/2010 E L DISEASE - EA EMPLOYEE 31,000,000 Il yes. tleepObe untler DESCRIPTION OF OPER ATION S below E L DISEASE- POLO LIMIT $1 QDD 000 DESCRIPTION OF OPERATIONS I LOCATIONS! VEHICLES (Attach ACORD tat, AddIU.IIl Remark. S.h.d. a, It more space b R quln.d' certificate holder is added as additional insured Al endorsment attached CERTIFICATE HOLDER CANCELLATION City Of Newport Beach SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 3300 Newport Blvd ACCORDANCE WITH HE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Sakec PO BOX 1768 Newport Beach, CA 92658 ©1988 -2009 ACORD CORPORATION. All rights reserved. AC ORD 25 (2009109) The ACORD name and logo are registered marks of ACORD FRAUoiidusing FoRns Boss Plus Sa are.nmY.FpmsBms.mmpnpre imPuNishug W0 20 &1977 • • POLICY NUMBER: 094160568 COMMERCIAL GENERAL LIABILITY Schmitz & Associates, Inc THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSORS OR CONTRACTORS (FORM B) This endorsement modifies insurance provide the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE PROJECT: Name of Person or Organization: City of Newport Beach 3300 Newport Blvd PO BOX 1768 Newport Beach, CA 92658 (If no entry appears above, information required to complete this endorsement will be shown in the declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person m organization shown in the schedule, but only with respect to liability arising out of your completed operations performed for that insured. Al endorsement: City of Newport Beach, Owner and other parties as required by owner listed above are hereby named as additionally insured as respects any claim, loss or liability arising out of the insured's performance of the work under its contract with the City of Newport Beach. Insurance coverage provided is primary as respects the interest of the City of Newport Beach and any other insurance maintained by the City of Newport Beach is excess and non- contributory with the insurance required hereunder. CG 20 10 11 85 Copyright, Insurance Services Offices, Inc., 1992 0 POLICY NUMBER: 094160568 Schmitz & Associates, Inc 0 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provide the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: City of Newport Beach 3300 Newport Blvd PO BOX 1768 Newport Beach, CA 92658 (If no entry appears above, information required to complete this endorsement will be shown in the declarations as applicable to this endorsement.) The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV — COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive the right of recovery we may have against the person or organization shown in the schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products - completed operations hazard ". This waiver applies only to the person or organization shown in the Schedule above. CG 24 04 10 93 Copyright, Insurance Services Offices, Inc., 1992 CERTHOLDER COPY Sc P.Q. BOX 420807, SAN FRANCISCO,CA 94142 -0807 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 06 -01 -2010 CITY OF NEWPORT BCH - LIC DIV - BLDG DEPT SC 3300 NEWPORT BLVD PO BOX 1768 NEWPORT BEACH CA 92658-8915 GROUP: 000562 POLICY NUMBER: 0002283 -2009 CERTIFICATE ID: 2 CERTIFICATE EXPIRES:08 -04 -2010 11 -01- 2009/06 -04 -2010 This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period that will expire or did expire as indicated above. This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms, exclusions. and conditions, of such policy. V.t� thoriaed Representahve Interim President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT #0015 ENTITLED ADDITIONAL INSURED EMPLOYER EFFECTIVE 2010-06-01 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. NAME OF ADDITIONAL INSURED: CITY OF NEWPORT BCH - LIC DIV - BLDG DEPT ENDORSEMENT #1600 - DONALD W SCHMITZ PRES,SEC,TRES - EXCLUDED. ENDORSEMENT #2570 ENTITLED WAIVER OF SUBROGATION EFFECTIVE 2010 -06 -01 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. THIRD PARTY NAME: CITY OF NEWPORT BCH - LIC DIV - BLDG DEPT EMPLOYER SCHMITZ & ASSOCIATES INC 29350 PAC COAST HWY 12 MALIBU CA 90265 SC [B10,SCI (REV. 1.20101 PRINTED : 08-01 -2010 • 0 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 06/01 /2010 Dept. /Contact Received From: Shauna Oyler Date Completed: 06/01/2010 Sent to: Shauna Oyler By: Michelle Ross Company /Person required to have certificate: Schmitz & Associates 1. GENERAL LIABILITY A. INSURANCE COMPANY: Farmers Insurance Co B. AM BEST RATING (A -: VII or greater): "A "(XVL C. ADMITTED Company (Must be California Admitted) Is Company admitted in California? ® Yes ❑ No $2,000,000 plus D. LIMITS (Must be $1 M or greater): What is limit provided? $1,000,000 Umbrella E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers) ® Yes ❑ No F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? (K Yes ❑ No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No H. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes ® No 1. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. 1I. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: Farmers Insurance B. AM BEST RATING (A-: VII or greater) "A "(XV) C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): $1,000,000 plus What is limits provided? $1,000,000 Umbrella E. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): n/a Is it included? ❑ Yes ❑ No F. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. III. .I WORKERS' COMPENSATION A. INSURANCE COMPANY: State Compen: B. AM BEST RATING (A-: VII or greater): n/a C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): Insurance Fund Is it included? ❑ Yes ® No HAVE ALL ABOVE REQUIREMENTS BEEN MET? ❑ Yes ® No IF NO, WHICH ITEMS NEED TO BE COMPLETED? WC) Must have Certificarte of Insurance from State Fund with Waiver of Subrogation. Approved: Agent of Brown & Brown Broker of record for the City of Newport Beach Date ❑ Requires approval /exceptiontwaiver by Risk Management Comments: Approved: Risk Management Date initials 0 0 CITY NEWPORT BEACH CO CITY COUNCIL STAFF REPORT UN 0 R 7ntn Agenda Item No. 17 June 8, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Michael J. Sinacori, P.E. 949 - 644 -3342 or Msinacori@newportbeachca.gov SUBJECT: CALIFORNIA COASTAL COMMISSION APPLICATION PREPARATION AND PROCESSING— APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES Recommendation: Approve a Professional Services Agreement with Schmitz & Associates, Inc. (Schmitz) of Malibu, California, to conduct California Coastal Commission application preparation and processing at a contract price of $154,750 and authorize the Mayor and City Clerk to execute the Agreement. Discussion: The City is currently working on two large complex projects, Sunset Ridge Park and Marina Park, which will require Coastal Development Permits (CDP) from the California Coastal Commission. Due to the varying degree of regulations, regional agency permits and site specific issues, and complexities of the CDP review process, staff believes that it would be beneficial to utilize a consultant with extensive experience in applying for and processing CDP's through the California Coastal Commission on these projects. In accordance with Council Policy F -14, staff developed and sent out a "Request for Qualifications' (RFQ) for coastal development permit assistance in March of this year. We received seven proposals in response to the RFQ. A staff review committee evaluated the qualifications packages and interviewed the top five qualified firms. Based on the interviews of these firms as well as the possible issues associated with these two projects, staff is recommending that Council retain the consulting services of Schmitz & Associates, Inc. of Malibu, California, to conduct California Coastal Commission application preparation and processing at a not to exceed contract price of $154,750. Schmitz's rates are competitive and in line with industry standards. Staff also received very positive feedback during our reference check discussions with his current and prior Approof Professional Services Agreements with Schmitz & Associates, Inc. June 8, 2010 Page 2 clients. Donald Schmitz, the firm's president, has a strong understanding of the Coastal Act and CDP process, and appears to have good working relationships with Coastal Commission staff as well as the Commissioners. In addition, City staff has observed Mr. Schmitz present projects at Coastal Commission hearings, and believe that he demonstrated good understanding of the technical issues and strong advocacy for his clients. Staff feels that this experience should assist the City when dealing with complex regulations or difficult issues that may arise during the CDP process. The fee includes the potential to process two separate CDPs for the Marina Park Project, if it appears that approval for Phases I and II could be achieved more quickly than for all three phases of the project. If it is determined that a single CDP for the entire project can be completed within an acceptable timeframe, the fee will be reduced by $48,750 for a total contract price of $106,000. Environmental Review: No Environmental clearances are required for this action. Certified Environmental Impact Reports have been completed for both Sunset Ridge Park and Marina Park. Funding Availability: There are sufficient funds available in the following accounts for this contract: Account Description General Fund (Marina Park) General Fund (Sunset Ridge Park) Prepared by: MO "al J. Sinacdri, P.E. < Assistant City Engineer Account Number 7411- C4002002 7412- C5100515 Total: Amount $103,500 $51,250 $154,750 Su fitted by: David A. Webb, P.E. Z�-O, Deputy Public Works Director/ City Engineer Attachment: Professional Services Agreement with Schmitz & Associates, Inc 0 P PROFESSIONAL SERVICES AGREEMENT WITH SCHMITZ & ASSOCIATES, INC. FOR CALIFORNIA COASTAL COMMISSION APPLICATIONS OF MARINA PARK AND SUNSET RIDGE PARK THIS AGREEMENT is made and entered into as of this day of , 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and SCHMITZ & ASSOCIATES, INC., a California corporation whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California, 90265 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to apply for Coastal Development Permits from the California Coastal Commission for Marina Park and Sunset Ridge Park. C. City desires to engage Consultant to provide professional services in the preparation and processing of the California Coastal Commission's Coastal Development Permits Applications for Marina Park and Sunset Ridge Park ( "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 Donald W. Schmitz, II, AICP, F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31" day of December, 2011, unless terminated earlier as set forth herein. 0 • 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all'delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for .performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Fifty -Four Thousand, Seven Hundred Fifty Dollars and no /100 ($154,750.00) 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. Professional Services Agreement Page 2 0 0 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in .Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated DONALD W. SCHMITZ II, AICP 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. MIKE SINACORI, 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 Professional Services Agreement Page 3 • 11 authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. Professional Services Agreement Page 4 0 0 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to 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. Professional Services Agreement Page 5 0 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000) for Consultant's employees in accordance with the laws of the State of Professional Services Agreement Page 6 California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: i. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement Professional Services Agreement Page 7 i • imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 16. SUBCONTRACTING 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. Professional Services Agreement Page 8 0 0 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 0 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 bome 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 0 0 Attn: Mike Sinacori 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 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Donald W. Schmitz II, AICP Schmitz & Associates, Inc. 29350 Pacific Coast Highway, Suite 12 Malibu, CA 90265 Phone: 310 - 589 -0773 Fax: 310 -589 -0353 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 0 0 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: yn a uchamp, Assistant Cit ttorney ATTEST: By: Leilani I. Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Keith D. Curry, Mayor CONSULTANT: SCHMITZ & ASSOCIATES, INC. By: Donald W. Schmitz 11, AICP, Chief Executive Officer and Chief Financial Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Professional Services Agreement Page 13 0 9 EXHIBIT A 1: Project Evaluation: Review potential policy changes andlor modifications to rategy precipitated by Coastal Commission review of CDP Application #1 $2:000 1) Review and analysis of relevant project documents - including Coastal Commission Conditions of Approval, Coastal Commission transcripts, eta, new public comment letters, etc. _ 2) Communications with Project's technical consultants as required to address potential new issues raised during Coastal Commission Application #1. 3) Communications /Meetings with City officials and staff as necessary. 4) Meetings /Communications with CCC Senior Staff to discuss issues raised in CDP Application #1 as it pertains to CDP Application #2f. 11: CDP Application Preparation $6,000 City staff with preparation of CDP application, including alternatives analyses. ' 1) Meetings /Communications with CCC Senior Staff just prior to submittal of CDP Application 2) Meetings /Communications with CCC staff to respond to any incompletion letters issued and address any questions raised subsequent to application submittal. Work with City staff to prepare supplemental project analysis and information in support of project as appropriate to respond to Coastal staff issues. Also, work closely with Coastal staff to ensure expeditious processing of application. 3) Meetings /Communications with CCC staff to advocate for favorable recommendations and special conditions in their Staff Report. Review staff report upon issuance and coordinate with Staff on any areas of concern. Concurrent meetings /communicalions with City of Newport Beach staff and technical consultants as required. ) Preparation of Presentation Materials (PowerPoint, Exhibits/Handouts for Commissioners, etc.) in upport of Project for CCC Hearing. $7,500 2) CommunicationslMeetings with Coastal Commissioners "` in advance of Hearing to advocate project. $10,000 4) Review and assess any adverse comment letters received prior to Heading and prepare additional presentation materials to rebut any opposition (estimate & exclusive of total) . " "` $6.000 5) Representation of Project at Coastal Hearing by Don Schmitz. " "' $2,750 This estimate does not include activities associated with any substantial revisions to the proposed project. S &A will review with the City the extent of lobbying required for the Marina Park project. ""This estimate does not incfude S&A's services associated wide meetings /communicaUons to directly respond to project opponents nor written responses to public agencies to counter such opposition for administrative record is fee does not include travel and lodging costs or other approved Consultant "Expenses" that are submitted in prior to expenditure and which are preapproved by City. This estimate covers our services (rot approved • Lase I: Due Diligence: Comprehensive understanding of Project required to effectively lvocate before the CCC. $8,000 Review and analysis of all relevant project documents - including but not llmited to EIR. City staff ;ports, Planning Commission and City Council hearing transcripts, property technical reports, project urveys and plans, reviewing agency comment letters, wetlands related codes, regulations: cases, etc. !) Communications with Project's technical consultants as required while completing review of their echnical documents and plans. 3) CommunicatlonsfMeetings with City officials and staff as necessary. 4) Meetings /Communications with CCC Senior Staff to preliminarily discuss issues raised in their EIR comment teller; these discussions will aid us in the preparation of the CDP application as well as in future negotiations with Staff. Phase 11: CDP Application Preparation , $6,000 Assist City staff with preparation of CDP application, including alternatives analyses. Phase 111: COP Application ProcessinglAdvocacy with Staff" 1) MeetingOCommunications with CCC Senior Staff just prior to submittal of CDP Application. 2) Meetings /Communications with CCC staff to respond to any incompletion letters Issued and address any questions raised subsequent to application submittal. Work with City staff to prepare supplemental project analysis and information in support of project as appropriate to respond to Coastal staff issues. Also, work closely with Coastal staff to ensure expeditious processing of apprtcation. 3) Meetings /Communications with CCC staff to advocate for favorable recommendations and special conditions in their Staff Report. Review staff report upon issuance and coordinate with Staff on any areas of concern. Concurrent meetingslcommunications with City of Newport Beach staff and technical consultants as required. Phase IV: COP.!A pplication Hearing Preparation and Representation 1) Preparation of Presentation Materials (PowerPoint, Exhibits/Handouts for Commissioners, etc.) in Support of Project for CCC Hearing. $7,500 2) Communications/Mestings with Coastal Commissioners` in advance of Hearing to advocate project. $10,000 4) Review and assess any adverse comment letters received prior to Hearing and prepare additional presentation materials to rebut any opposition (estimate & exclusive of total) . "" $6,000 5) Representation of Project at Coastal Hearing by Don Schmitz,**` $2,750 'Should the City proceed with one Coastal Development Permh for all three phases, fhe fee noted Includes the work :(fort for one CDP. '• This estimate does not include activities associated Wth any substantial revisions b the proposed praiect. $&A VAN review with the City the extent of lobbying required for the Madna Park project. ' "•"This estimate does not include SWs services associated with meatingslcommurrip[ions to directly respond to )roject opponents nor written responses to public agencies to counter such opposition for admirtistmtive record )urposes. ieffectively advocate before the CCC. ( $8,000 1) Review and anafysis of all relevant project documents - including but not limited to OR, City staff reports. Planning Commission and City Council hearing transcripts, property technical reports, project surveys and plans, comment letters, applicable Banning Ranch project proposals, correspondences, potential access agreements. 2) Communications with Project's technical consultants as required while completing review of their technical documents and plans. 3) Communications /Meetings with City officials and staff as necessary. Phase 11: COP Application Preparation $6,,000 Assist City staff with preparation of COP application, including alternatives analyses. Phase III: CAP Application ProcessingfAdvocacy with Staff` $11,000 1) Meetings[Communicalions with CCC Senior Staff prior to submittal of COP Application. 2) Meetings/Communications with CCC staff to respond to any incompletion letters issued and address any questions raised subsequent to application submittal. Work with City staff to prepare, supplemental project analysis and information in support of project as appropriate to respond to Coasta) staff issues. Also, work closely with Coastal staff to ensure expeditious processing of application. 3) Meetings /Communications with CCC staff to advocate for favorable recommendations and special conditions in their Staff Report. Review staff report upon issuance and coordinate with Staff on any areas of concern. Concurrent meetings /communications with City of Newport Beach staff and technica) consultants as required. 1) Preparation of Presentation Materials (PowerPoint, Exhibits /Handouts for Commissioners, etc.) in support of Project for CCC Hearing. $7,500 2) CommunicationslMeatings with Coastal Commissioners" in advance of Hearing to advocate project. $10,000 4) Review and assess any adverse comment letters received prior to Hearing and prepare additional presentation materials to rebut any opposition. $6,000 5) Representation of Project at Coastal Hearing by Don Schmitz-` $2,750 This estimate does not include activities associated with any substantial revisions to the project that may be roposed. A separate esdmale vfll be prepared if the project is revised during COP processing. S&A will review with the City idle extent of lobbying required far the Sunset Ridge Park project. "This fee does not include travel and Lodging costs or other Oily approved expenses pursuant to the terms of )e consuting agreement. This is a services estimate only. 0 0 SCHMITZ & ASSOCIATES, INC. RATESCHEDULE Principal .... ............................... Regional Manager ........................... Project Team Manager ....................... Special Projects Manager. . . . ................ . Senior Planner 11 ............................. Senior Planner ............................. Associate Planner 11 .......................... Associates Planner .......................... Planning Technician .......................... HEADQUARTERS OFFICE MALIBU OFFICE 29350 PACIFIC COAST HWY. SUITE 12 MALIBU, CA 90265 TEL: 310.589.0773 FAX: 310.589.0353 $275/13r $175 /lir $165 /Ilr $165 /hr $145/hr $135/hr $120/hr $110/lu $85/hr REGIONAL OFFICE CONE /0 VALLEY OFFICE 5234 CHESEBRO ROAD, SUITE 200 AGOURA HILLS, CA 91301 TEL: 818.338.3636 FAX: 818.338.3423