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HomeMy WebLinkAbout14 - Amendment to a PSA for Staff AugmentationQ �EwPpRT CITY OF s NEWPORT BEACH `q44:09 City Council Staff Report June 13, 2023 Agenda Item No. 14 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: Jim Campbell, Deputy Director, jampbell@newportbeachca.gov PHONE: 949-644-3210 TITLE: Amendment No. Two to a Professional Services Agreement with Sagecrest Planning and Environmental for Staff Augmentation h\ 33 d:7±Tip 6 On April 15, 2021, the City of Newport Beach (City) entered into a Professional Services Agreement (PSA) with Sagecrest Planning and Environmental, LLC (Sagecrest) for planning consulting services in support of planning activities of the Community Development Department. Amendment No. One, approved in June of 2022, extended the agreement and increased the total budget amount. For the City Council's consideration is Amendment No. Two to the Sagecrest PSA (Attachment A). The amendment is needed to maintain those services due to changes in staffing and high workload. RECOMMENDATIONS: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Approve Amendment No. Two to Professional Services Agreement with Sagecrest Planning and Environmental for Staff Augmentation — Planning Services. DISCUSSION: Due to a high workload and fluctuations in personnel, the Community Development Department (Department) uses on -call consulting services for a variety of planning -related functions. Services include the review of plans for zoning consistency, the processing of discretionary planning applications, preparation of amendments to the General Plan, Zoning, Local Coastal Program, and preparation of environmental documents or other special studies. Initially, the Department executed a PSA with Sagecrest for a not -to -exceed amount of $120,000 (Attachment C). The City Council approved Amendment No. One (Attachment B) extending the term one year and increasing the total contract amount to $240,000. The agreement expires at the end of this fiscal year and the need to continue the services provided remains. 14-1 Amendment No. Two to a Professional Services Agreement with Sagecrest Planning and Environmental for Staff Augmentation June 13, 2023 Page 2 The Planning Division of the Department currently has two vacancies that include a senior planner and a planning technician. The responsibilities of both positions have been shifted to other staff members in the interim and to the on -call Sagecrest consultants. These factors, coupled with the current workload and need to update codes for compliance with continuous changes in State of California housing laws, and Housing Element Update efforts, necessitate continuation of services provided by Sagecrest and the proposed amendment. The current contract amount is nearly exhausted and increasing the amount an additional $120,000 is needed to ensure necessary support throughout the term of the agreement while the Department fills vacant positions, and ensures new personnel are sufficiently trained. The increased contract amount is sufficient to maintain Department activity through this transition. It will also provide flexibility to increase or decrease consultant services to meet a fluctuating workload and staffing environment. FISCAL IMPACT: The proposed FY 2023-24 budget includes sufficient funding for this agreement, and it will be expensed to the Planning Professional Services account [05050501-811008] in the Community Development Department budget. 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. 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). ATTACHMENTS: Attachment A —Amendment No. Two to Professional Services Agreement Attachment B — Amendment No. One to Professional Services Agreement Attachment C — Professional Services Agreement with Sagecrest Planning and Environmental, LLC. 14-2 Attachment A Amendment Two to Professional Services Agreement 14-3 AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT WITH SAGECREST PLANNING AND ENVIRONMENTAL FOR STAFF AUGMENTATION — PLANNING SERVICES THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Two") is made and entered into as of this 13th day of June, 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SAGECREST PLANNING AND ENVIRONMENTAL, a California corporation ("Consultant"), whose address is 27128 Paseo Espada, Suite 1524, San Juan Capistrano, CA 92675, and is made with reference to the following: RECITALS A. On April 15, 2021, City and Consultant entered into a Professional Services Agreement ("Agreement") to engage Consultant to provide Staff Augmentation — Planning Services ("Project"). B. On June 14, 2022, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to increase the total compensation due to a higher volume of Work than was originally anticipated, update the Billing Rates, and update the Notices Section. C. Since entering into Amendment No. One, Consultant was asked to perform a higher volume of Work than was anticipated. D. The parties desire to enter into this Amendment No. Two to increase the total compensation, and to extend the term of the Agreement to June 30, 2024. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2024, unless terminated earlier as set forth herein." 2. COMPENSATION TO CONSULTANT Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates 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 Sixty Thousand Dollars and 00/100 ($360,000.00), 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." Sagecrest Planning and Environmental Page 1 14-4 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 One Hundred Twenty Thousand Dollars and 00/100 ($120,000.00). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Sagecrest Planning and Environmental Page 2 14-5 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: ron C. Harp ti�ti3 ity Attorney o3� ATTEST: Date: By: Leilani 1. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Noah Blom Mayor CONSULTANT: SAGECREST PLANNING AND ENVIRONMENTAL, a California corporation Date: IN Amy Vazquez Chief Executive Officer, Chief Financial Officer, Secretary [END OF SIGNATURES] Sagecrest Planning and Environmental Page 3 14-6 Attachment B Amendment One to Professional Services Agreement 14-7 AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH SAGECREST PLANNING AND ENVIRONMENTAL FOR STAFF AUGMENTATION — PLANNING SERVICES THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 14th day of June, 2022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SAGECREST PLANNING AND ENVIRONMENTAL, a California corporation ("Consultant"), whose address is 27128 Paseo Espada, Suite 1524, San Juan Capistrano, CA 92675, and is made with reference to the following: RECITALS A. On April 15, 2021, City and Consultant entered into a Professional Services Agreement ("Agreement") to engage Consultant to provide Staff Augmentation — Planning Services ("Project"). B. Since entering into the Agreement, Consultant was asked to perform a higher volume of Work than was originally anticipated. C. The parties desire to enter into this Amendment No. One to increase the total compensation, update the Billing Rates, and update the Notices Section. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be amended in its entirety and replaced to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Hundred Forty Thousand Dollars and 001100 ($240,000.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed One Hundred Twenty Thousand Dollars and 00/100 ($120,000.00). WAN 2. NOTICES Section 25.3 of the Agreement is amended in its entirety and replaced with the following: "All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at- Attn: Amy Vazquez Sagecrest Planning and Environmental 27128 Paseo Espada, Suite 1524 San Juan Capistrano, CA 92675" 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Sagecrest Planning and Environmental Page 2 14-9 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: </ra /zz By: �r a on C. Harp C-ity Attorney ATTEST:� 2 ��i� Date: /• ob�- [END OF SIG CITY OF NEWPORT BEACH, a California mu icipal corporal Date: n muiaoon CONSULTANT: Sagecrest Planning and Environ"4ntall a alifomia corporation Date: `. By: C/ r y Amy V u Chief Exle�c%u� fficer nnf.= l zo /2 /d' Attachments: Exhibit B — Schedule of Billing Rates Sagecrest Planning and Environmental Page 3 14-10 EXHIBIT B SCHEDULE OF BILLING RATES Sagecrest Planning and Environmental Page B-1 14-11 Position Hourly rate Planning Director $220.00 City Planner $200.00 Zoning Administrator $160.00 Principal Planner $160.00 Senior Planner � $140.00 ... _... _----- ...._-----__.___...______—._ Associate Planner $120.00 ........ _ _..... ........... Assistant Planner i 3 $90.00 Planning Aide $80.00 14-12 Attachment C Professional Services Agreement with Sagecrest Planning and Environmental, LLC. 14-13 PROFESSIONAL SERVICES AGREEMENT WITH SAGECREST PLANNING AND ENVIRONMENTAL FOR STAFF AUGMENTATION — PLANNING SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 15th day of April, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and SAGECREST PLANNING AND ENVIRONMENTAL, a California corporation ("Consultant"), whose address is 2400 E. Katella Avenue, Suite 800, Anaheim, CA 92806, 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 desires to engage Consultant to provide Staff Augmentation — Planning Services ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. 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 Effective Date, and shall terminate on June 30, 2023, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to 14-14 completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 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 within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein 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. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Twenty Thousand Dollars and 00/100 ($120,000.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 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. Sagecrest Planning and Environmental Page 2 14-15 Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Amy Vazquez to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Community Development Department. City's Principal Planner or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to 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. 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 and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. Sagecrest Planning and Environmental Page 3 14-16 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and 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, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement (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, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' 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 Consultant. 10. INDEPENDENT CONTRACTOR 10.1 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. No civil service status or other right of employment shall accrue to Consultant or its employees. Sagecrest Planning and Environmental Page 4 14-17 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 of the Work 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. 10.2 Consultant agrees and acknowledges that no individual performing Services or Work pursuant to this Agreement shall: work full-time for more than six (6) months; work regular part-time service of at least an average of twenty (20) hours per week for one year or longer; work nine hundred sixty (960) hours in any fiscal year; or already be a CalPERS member. 10.3 Consultant must submit to and pass a criminal background investigation by providing a complete set of fingerprints to City prior to commencing or performing Services or Work. Consultant is required to submit any fees for the criminal background investigation according to the City's most current administrative fee schedule or successor document. Fingerprints may be required to be updated every five (5) years. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator 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 or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. Sagecrest Planning and Environmental Page 5 14-18 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 co -tenancy, 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 subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (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. Additionally, all material posted in cyberspace 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, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes Sagecrest Planning and Environmental Page 6 14-19 full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 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 expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or 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 Sagecrest Planning and Environmental Page 7 14-20 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 Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant shall conform to all requirements therein. 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 25.1 All notices, demands, requests or approvals, including any change in mailing address, 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. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Principal Planner Community Development Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 Sagecrest Planning and Environmental Page 8 14-21 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Amy Vazquez Sagecrest Planning and Environmental 2400 E. Katella Avenue, Suite 800 Anaheim, CA 92806 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Sagecrest Planning and Environmental Page 9 14-22 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 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. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 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, State of California. 28.10 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 race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. Sagecrest Planning and Environmental Page 10 14-23 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Sagecrest Planning and Environmental Page 11 14-24 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: ti / VZO -z_ I By: 0gA-=- -� Aaron C. Harp City Attorney ATTEST: 6' Date: • )-021 ik- Leilani By: I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date:'i'i©L By: Gra . Leung Cit anager CONSULTANT: SAGECREST PLANNING AND ENVIRONMENTAL, a California corporation Date: : Signed in Counterpart Amy Vazquez Chief Executive Officer Date: Signed in Counterpart Greg McCafferty Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Sagecrest Planning and Environmental Page 12 14-25 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: �f Z/ �/Zo Zj By: (ice- Aaron C. Harp City Attorney ATTEST: Date: is Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Grace K. Leung City Manager CONSULTANT: SAGECREST PLANNING AND ENVIRONMENTAL, a California corporation Date: `t By: 1 Amy Va ez Chief ExecutivLf� er [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Sagecrest Planning and Environmental Page 12 14-26 EXHIBIT A SCOPE OF SERVICES Sagecrest Planning and Environmental Page A-1 14-27 Exhibit A - Scope of Services Consultant shall provide the following services: 1. Review, analyze and process Consultant provides entitlement processing services for discretionary cases consistent development applications and management of City -initiated with City codes, policies and projects that may require general plan amendments, specific standards. Utilize City plans, reclassifications, Conditional Use Permits, subdivision maps, electronic and paper files to variances, design review, annexations, and other discretionary and research previous and/or administrative actions. Consultant planners are skilled project related cases. managers who provide excellent customer service to the applicant and the City. Consultant guides the applicant through the entitlement process, timelines, technical studies, interdepartmental comments, revisions to the application, and the review and approval process. Team members utilize the City's historical files, Geographic Information Systems, permit tracking software, and zoning code to respond to inquiries at the public counter and to research entitlements. 2. Prepare environmental Consultant's planners are well versed in current environmental analysis, including, but not law and preparing CEQA documents for discretionary projects or limited to, Initial Studies and City -initiated plans and programs. The Consultant team includes Negative Declarations, as planners who can prepare streamlining checklists, Initial Studies, required by the California (Mitigated) Negative Declarations, EIRs, Mitigation Monitoring and Environmental Quality Act Reporting Programs, and all required CEQA notices. Consultant (CEQA). planners have also managed CEQA consultant teams. Consultant has reviewed and commented on numerous CEQA documents from outside agencies to ensure the City's comments and concerns are represented. Christine Saunders, Senior Project Manager, previously served as the CEQA planner for the City of Anaheim and provides CEQA technical support to the entire Consultant team. 3. Route plans to City departments; consolidate Consultant's planners are experienced project managers. comments; and present Entitlement case processing generally entails routing plans to recommendations and various City departments; consolidating comments; resolving revisions to the applicant. internal inconsistencies; and presenting recommendations and Work with other departments revisions to the applicant. Once the application is complete, to ensure consistency of Consultant's planners will write clear, concise, and accurate staff comments. Prepare staff reports and manage the project through public outreach, reports and presentations to reviews and approvals by staff, Planning Commission, any other citizen committees and required approval body, and the City Council. decision -making bodies. 14-28 4. Maintain communication with applicants, interested parties, property owners, homeowner associations, etc. Respond to inquiries about projects from residents and applicants. Consultant takes pride in its communication and customer service with applicants, interested parties, property owners, homeowner associations, various governmental agencies, and other City departments. Consultant's planners quickly learn the frequently asked questions (i.e. business license, special events, building inspection requests, etc.) and provide "one -stop shopping" at the public counter. S. Prepare notices for public Consultant understands the importance of preparing timely, clear, meetings and hearings in concise and accurate public notices. Consultant is experienced in accordance with City and preparing publications for the newspaper, posting on and/or near CEQA requirements. the project site and mailing notices to interested parties who may be affected by a proposed action. 6. Attend community meetings and public hearings, as required, and present reports to various Boards, Commissions, and the City Council. 7. Manage the project schedule in accordance with the City's adopted timelines. 8. Open, maintain and close electronic and paper files in accordance with City procedures. 9. Review grading and building plans for consistency with discretionary approvals and environmental mitigation, if applicable. Consultant planners have solid presentation skills and have presented entitlement applications and reports to city councils, commissions, and community groups. Consultant is often commended for the ability Consultant's staff has to take complex issues and present them in a way that is clear and concise. Consultant is passionate about working with stakeholders to communicate the direction of the City early in the process so they understand what the goals are and how to be a part of the ultimate solution. Consultant proactively manages its caseload to ensure that all projects stay on schedule and in accordance with the City's adopted timelines. Consultant coordinates with various City departments for comments and build relationships with department representatives to ensure good communication and coordination is maintained throughout the life of each project. Consultant understands the importance to applicants of maintaining established timelines. Proper records management and organization is crucial. Consultant's planners have all worked for public agencies and understand the importance of working diligently to maintain the public record, proper publications, filing, indexing, and safekeeping of all proceedings of the Planning Commission and City Council. Consultant works with the City Clerk to ensure the public record is kept permanently and is set up for efficient retrieval. Plan checking is completed in accordance with conditions of approval associated with each discretionary approval and applicable codes, ordinances and standards adopted by the City. 14-29 10. Provide staff at the public Consultant's team members are skilled at reviewing a City's information counter. historical files, zoning map, zoning code and other data and files to respond to inquiries at the public counter. Consultant's planners are well versed in determining when a project is ready for plan submittal. Consultant quickly learns the frequently asked questions (i.e. business license, special events, building inspection request, etc.) that are typical to customers visiting City Hall to provide as much assistance as possible and help provide "one -stop shopping" for questions and needs. Consultant takes pride in its exceptional customer service skills. 14-30 SCHEDULE OF BILLING RATES Sagecrest Planning and Environmental Page B-1 14-31 Exhibit B - Schedule of Billing Rates Sagecrest will perform consulting services based on the following breakdown of classification of hourly rates for key personnel as identified below: Planning Services Position Planning Director Hourly Rate. $200.00 Planning Manager $180.00 Principal Planner $140.00 Senior Planner $120.00 Associate Planner $100.00 Assistant Planner $80.00 Planning Aide $70.00 Minutes Clerk/Planning Administration $60.00 Reimbursable Expenses: Expenses incurred will be billed at actual costs plus hourly rate, if applicable. Reimbursable expenses include, but are not limited to, reprographics, postage, certified mailings, office supplies such as Compact Discs for environmental documents, and CEQA filing fees. Mileage will be billed at the current IRS reimbursement rate. 14-32 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Sagecrest Planning and Environmental Page C-1 14-33 Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: Sagecrest Planning and Environmental Page C-2 14-34 A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. Cit+'ss Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Right to Review Subcontracts. Consultant agrees that upon request, all agreements with subcontractors or others with whom Consultant enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. D. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. 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. If the Consultant maintains higher Sagecrest Planning and Environmental Page C-3 14-35 limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. F. Self -insured Retentions. Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self -insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. H. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Sagecrest Planning and Environmental Page C-4 14-36 Sagecrest Planning and Environmental From: Customer Service To: Ramirez, Brittanv; Insurance Cc: saoar((bebix.com Subject: Compliance Alert -Vendor Number FV00000466 Date: Monday, April 19, 2021 6:04:27 PM [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. This Account has moved from non -compliant to COMPLIANT status and is currently in compliance for certificate of insurance requirements. FV00000466 Sagecrest Planning And Environmental Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach. 14-37