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HomeMy WebLinkAbout11 - Santa Ana Heights Equestrian FacilityCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 11 May 9, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: Santa Ana Heights Equestrian Facility— Contract for Planning and Environmental Services and Funding Agreement ISSUE: Should the City enter into a $41,300 (includes the $ 39,273.00 base fee plus 5% contingency) contract with Keeton Kreitzer Consulting to do environmental consulting services for the Santa Ana Heights Equestrian Arena Project? RECOMMENDATION: 1. Authorize the City Manager to execute an Agreement with Orange County or the Orange County Development Agency to allow the City to manage the construction of an equestrian facility in Santa Ana Heights; 2. Authorize the Mayor to sign a Professional Services Agreement with Keeton Kreitzer Consulting in an amount not to exceed $41,300 (includes a 5% contingency) to conduct environmental consulting services for the Santa Ana Heights equestrian facility. DISCUSSION: The Santa Ana Heights redevelopment agency (RDA) budget and the Santa Ana Heights Specific Area Plan includes the siting of an equestrian facility (Section 20.44.075[Ej[21 of the NBMC). In 2000 -2001, the County, working with the Santa Ana Heights Project Area Committee (SAH PAC), processed a plan for a 2 -ring riding arena within an easement of the Orange County Flood Control District (OCFCD) near the Santa Ana /Delhi Channel. The plan received the approval of the Newport Beach Planning Commission (September 21, 2000, issuance of Use Permit #3680 and acceptance of Negative Declaration) and the California Coastal Commission. The attachments show a diagram of the Project and its location. The Project itself includes the construction of up to three arenas and the restoration of an old arena site and trails adjacent to the old site. Contract with Keeton Kreitzer for the SAH Equestrian Arenas May 9, 2006 Page 2 The County never constructed the Project. Following the City's annexation of East Santa Ana Heights, the City has taken a more active role in working on RDA - funded projects on the County's behalf. For example, the City and the County agreed to work cooperatively on the Santa Ana Heights Fire Station and a proposed Community Center in Santa Ana Heights. While the County and the City have a formal agreement for these two projects, City staff and County staff have verbally agreed to allow the City to process three other projects: • The Utility Undergrounding Project along Cypress and Mesa' • The Mesa -Birch Park • The Equestrian Facility in the Santa Ana /Delhi Channel Given the length of time that has passed since 2001, the equestrian facility needs to be re- permitted at both the City and at the Coastal Commission. Further, additional environmental review for the Project will likely be required given the concerns expressed by some environmental advocates about the Bay - related water quality impacts of the Project and of horses in general. Keeton Kreitzer of Keeton Kreitzer Consulting did the first go- around of this Project's permitting in 2001. As such, we believe he is the best candidate to update the Project's permits and process a new environmental document for the Project, if required. We solicited a proposal from him and believe it to be a fair amount for the work proposed (see attached proposal). Funding. The total cost of the Arena Facility is roughly $250,000 and is a budgeted project for the SAH RDA. Funding for design and environmental services is available in the FY 2005 -06 CIP (Page 137, Santa Ana Heights Riding Arena, Account 7251 - 05100866). Environmental Review: Environmental review is not required for this Council action, but environmental review for the Project itself will be done as a part of this contract. Public Notice: This agenda item requires standard Brown Act notice Submitted by: Dave Kiff Assistant City Manager Attachments: Diagram of Arenas, Map of Area Proposed Professional Services Agreement with Keeton Kreitzer Consulting 2. U l0 LL C 0 iA N 7 Q W O E m 0 m � o a 4 �x 4r °sE 3F 3� 7 m� i �i Ft `nt :C .§ rcR �4 3 �., � � � �; 9 1 � 1 � � 1�1 4 �_ � �.. A �. Y !� x ' W ^a "a�a � .. �. �' �' li} _� ° ,� � r. �_ e a _. a �> _ i c4�! r_ s' s3� n 5: i PROFESSIONAL SERVICES AGREEMENT WITH KEETON KREITZER CONSULTING THIS AGREEMENT is made and entered into as of this _ day of May, 2006, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and KEETON KREITZER CONSULTING a California Corporation whose address is , California, _ ( "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 construct an equestrian facility ( "Facility') in the Santa Ana Heights community. C. City desires to engage Consultant to provide permit processing services and environmental review services for the Facility ('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 Keeton Kreitzer 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 315t day of December, 2006, 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. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 5 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A 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 thirty nine thousand, two hundred seventy three dollars ($39,273.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: 2 A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated KEETON KREITZER 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 City Manager's Office. Dave Kiff, Assistant City Manager (or his designee) shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project C] Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES 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. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are 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. rd 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 and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the 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 R q Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of II) C:1 the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor'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. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 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, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess 7 insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. 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 No Subcontractors. 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 8 Ili. to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or, anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. 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. {J O 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. 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. 22. 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. 23. 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. 24. 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 ILI 10 restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. 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. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Dave Kiff City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3002 Fax: 949 - 644 -3020 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Keeton Kreitzer Keeton Kreitzer Consulting 17291 Irvine Blvd. Suite 305 Tustin, CA 92780 Phone: 714 - 665 -8509 Fax: 714- 665 -8539 11 15 28. 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, 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. 29. 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. 30. 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. 31. 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. 32. CONFLICTS OR INCONSISTENCIES un 12 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. 33. 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. 34. 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. 35. 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. 36. 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. 37. 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: City Attorney for the City of Newport Beach ATTEST: 13 CITY OF NEWPORT BEACH, A Municipal Corporation By: Mayor for the City of Newport Beach CONSULTANT: LaVonne Harkiess, Keeton Kreitzer City Clerk Attachments: Exhibit A — Scope of Services & Billing Rates rZ. 14 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES FOR THE SANTA ANA HEIGHTS EQUESTRIAN FACILITY CONDITIONAL USE PERMITICOASTAL DEVELOPMENT PERMIT NEWPORT BEACH, CA SCOPE OF SERVICES 1. WORK PROGRAM A work program has been developed to ensure that the environmental review process is carried out in accordance with the California Environmental Quality Act (CEQA) and the City of Newport Beach adopted CEQA procedures. The scope of services envisioned by Keeton Kreitzer Consulting (KKC) to complete the work identified in this proposal includes: (1) the provision of competent, effective environmental analysis project management; (2) incorporation of existing and additional technical studies that may be required by the City (e.g., traffic and circulation, noise, air quality, hydrology, preliminary geotechnical analysis, etc.); (3) p reparation of t he a nvironmental d ocumentation ( i.e., i nitial s tudy /mitigated n egative declaration); (4) processing of the environmental documentation and public ,participation; (5) preparation of the final environmental document; and (6) preparation and filing of CEQA notices. These several objectives will be achieved through the completion of several work tasks. Each of these work tasks has been identified and described below. Task One - Prolect Initiation /Coordination KKC will be responsible for managing and coordinating all of the work to be undertaken to prepare the required environmental document (i.e., proposed [Mitigated] Negative Declaration). Project coordination will be an integral part of the planning process as indicated in the RFP. As such, KKC proposes to have a Project Initiation Meeting as the first step in that process. That meeting will be held at the first available time after the contract has been awarded and executed. Participants in the meeting will include representatives o f t he C ity o f N ewport B each, K KC, a nd p roject representatives deemed necessary to provide direction in the planning and environmental review process for the proposed project. Topics of discussion will include the definition of the project description, identification of responsible agencies and sources of information, and the project schedule. This task will also include four (4) additional meetings with City staff and coordination with the project technical consultants, resource agencies, and Coastal Commission staff. This task will also include additional meetings with other affected jurisdictions, agencies and /or organizations as necessary to identify impacts, assess impacts and define mitigation measures. In summary, this task will include the following sub -tasks Consultation and coordination of the proposed project and environmental document with the City of Newport Beach to ensure that City policies are incorporated into the Draft environmental document; Assurance that the Draft environmental document meets the requirements of CEQA, the State CEQA Guidelines, and the City's CEQA procedures; and Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY Coordination with City staff and attendance at up to five (5) meetings with City staff as indicated above. Attendance at meeting with other agencies and organizations as determined necessary and the preparation of written and oral progress reports, resolve issues, review comments and receive necessary direction from City staff. Estimated Time Frame: As Required Estimated Budget: $5,520.00 Task Two — Subconsultant Su000rt Because the project is located within the City's Coastal Zone, it will be necessary to conduct two studies to address important issues associated with the implementation of the equestrian facilities. These issues include water quality and biological resources. The firm of Fuscoe Engineering, Inc., will prepare a Water Quality Management Plan (WQMP), which will identify appropriate Best Management Practices (BMPs) that would be implemented with the proposed project to address the potential impacts resulting from the equestrian use. In addition, the subject property is located within an area that supports occupied coastal sage scrub habitat. Although no such habitat is located on the subject property, it will be necessary to address the potential indirect impacts of the proposed use on the nearby coastal sage scrub habitat and coastal California gnatcatcher. To that end, BonTerra Consulting will conduct an assessment of the project- related impacts to the habitat and will recommend appropriate measures to ensure that any direct or indirect on the habitat and /or sensitive species. Finally, KKC will undertake a records search through the South Central Coastal Information Center at California State University, Fullerton, to document the proximity of the site to recorded archaeological sites. Estimated Time Frame: 4 to 5 Weeks Estimated Budget: $13,540.00 Each of the technical analyses conducted for the proposed project would necessarily address the issues identified by the City and reflected in the RFP. Task Three - Initial Study /Mitigated Negative Declaration KKC will be responsible for the preparation of the initial study for the proposed Santa Ana Heights Equestrian Facility project. Based on a review of the State CEQA Guidelines, the proposed project is neither statutorily nor categorically exempt. Therefore, it would be subject to CEQA review. In order to achieve the objective of preparing a (Mitigated) Negative Declaration, the initial study must necessarily be extensive and thorough. Each of the topics identified on the City's environmental assessment form or, if desired by the City, on the State CEQA Guidelines will be analyzed to document the nature and extent of any potential environmental consequences (and the need for mitigation). T he specific purpose of the analysis will be to d ocument t he I ack o f a diverse a nvironmental i mpacts a ssociated w ith t he p roposed residential project to support the environmental determination that no significant impacts will occur as a result of project implementation. It is important to note that to the extent applicable, information from the previous initial study /negative declaration prepared for the equestrian facility in 2000 will be used; however, the information and analysis will be updated to ensure that the most current information is presented in the IS /MND. Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 4^ PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY The environmental analysis conducted for the proposed project will include research and analysis necessary to determine the nature and extent of the potential environmental impacts of the proposed Santa Ana Heights Equestrian Facility project. Specifically, the potentially significant impacts will be based on significance thresholds established by the City of Newport Beach. Should the analysis determine that a potentially significant impacts would occur, appropriate mitigation will be p rescribed t o e nsure t hat t he potentially significant impacts will be reduced to a less than significant level as mandated by CEQA and the State CEQA Guidelines. However, should it be determined that a potentially significant impact would occur and mitigation is not adequate to reduce the adverse effect to an acceptable (or mitigation is determined to be infeasible), the City will be advised immediately in order to identified the appropriate course of action (e.g., reduce the scope of the proposed project to reduce the potentially significant impact or prepare a Draft EIR). It is important to acknowledge that should the initial environmental analysis conclude that a project- related impact would remain significant, even with mitigation, the City would be required to prepare an Environmental Impact Report (EIR). Should it be necessary to do so, KKC will prepare a revised scope and budget for approval by the City prior to proceeding with any work on the EIR. Nonetheless, it is anticipated that any potentially significant environmental impacts that would be anticipated can be mitigated, resulting in the preparation of a mitigated negative declaration. As reflected above and in the work program, KKC has presented a s cope of w ork f or t he p reparation o f a n I nitial Study /Mitigated Negative Declaration (IS /MND). The proposed IS /MND will be submitted to the City of Newport Beach for review and comment. KKC will revise the initial study based on the comments made by City staff and prepare the Draft IS /MND. Once completed, the Draft document will be distributed for a 30 -day public review and comment period as required by the State CEQA Guidelines for local project. KKC will be responsible for distributing the document to the list of recipients developed by the City. KKC will a Iso b e r esponsible f or p osting t he N otice o f I ntent t o P repare a N egative D eclaration b oth at the Orange County Clerk- Recorder's Office and at the City of Newport Beach. Estimated Time Frame: 8 Weeks Estimated Budget: $5,400.00 Task Four - Preparation of the Final Negative Declaration KKC, in cooperation with the Newport Beach Planning Department staff, will prepare written responses to all relevant comments received during the public review and comment period. These responses will be submitted to the City of Newport Beach for review prior to completion of the Final Negative Declaration. It is important to note that the budget identified below reflects a limited amount of public comments. This budget may be revised if, after a thorough review of all comments received on the Draft (Mitigated) Negative Declaration, it is determined that it is inadequate to respond to all of the comments received on that document. Estimated Time Frame: 2 Weeks Estimated Budget: $2,840.00 Task Five — Mitigation Monitoring and Reporting Program An mandated in the RFP, KKC will prepare the Mitigation Monitoring and Reporting Program (MRRP) for the proposed project. This document will be presented to the City of Newport Beach and will identify each mitigation measure to be carried out if the project is implemented, the entity that will be responsible for Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 a+ PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY implementing the mitigation measure(s), and when each measure will be implemented. The MRRP will be presented to the City in a form that is acceptable to the City of Newport Beach. Estimated Time Frame: 1 Week Estimated Budget: $2,040.00 Task Six - Public Hearings If requested by the City, KKC will attend up to five (5) public hearings and workshops, including those before the Newport Beach Planning Commission, and City Council. The Principal /Project Manager will attend the public hearing and will be responsible for making all presentations and responding to questions raised during the public hearing. Should additional hearings be required, they will be charged at the appropriate hourly rate. Estimated Time Frame: As Required Estimated Budget: $2,760.00 Task Seven - Preparation of Legal Notice /Advertisement, Notice of Determination and DFG Certification KKC will be responsible for preparing both the requisite legal notice for the public advertisement, the Notice of Determination and the Department of Fish and Game fee (e.g., De Minimis certification or impact fee) forms that must be filed in the office of the Orange County Clerk- Recorder and with the State Clearinghouse. Once completed, these forms will be submitted to the City for review. KKC will also be responsible for filing these notices with the State Clearinghouse and Orange County Clerk- Recorder. It is important to note, however, that the filing fees are not reflected in the estimated budget for miscellaneous expenses. Although total budget includes the NOD filing fee that must be paid to the Orange County Clerk- Recorder at the time the NOD is filed, it does not include the Department of Fish and Game filing fee of $1,250.00, which must also be paid to the Orange County Clerk- Recorder at when the NOD is filed, if it is determined that the project is not exempt from the fee. Estimated Time Frame: 1 Day Estimated Budget: $320.00 Task Eight — Permit Processing KKC will also process the development applications through the agencies having jurisdiction, including: (1) the Conditional Use Permit (CUP) will be processed through the City of Newport Beach; (2) the Encroachment Permit will be processed through the County of Orange; and (3) the Coastal Development Permit will be processed through the California Coastal Commission. Processing of the applications in order to secure the three permits will include attendance at meetings with City, Coastal Commission and County staff and attendance at requisite public hearings. It is important to note Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 �i cl. PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY DELIVERABLES KKC will provide the City with the following deliverables, as prescribed in the RFP. Meetings and Coordination Monthly work progress reports Screencheck Administrative Draft MND: Ten (10) Copies of the First Administrative Draft MND (with appendices) One (1) Electronic copy of the Administrative Draft MND prepared in Microsoft Word and Exhibits (JPEG or DWG File Format) Draft MND Fifty (50) Copies of the Draft MND (with technical appendices and exhibits) Thirty (30) copies of the Notice of Completion One (1) Camera - ready, unbound original of the Draft MND (with technical appendices and exhibits) One (1) Electronic copy of the Draft MND (with technical appendices and exhibits) Final MND Three (3) Copies of the draft responses to comments on the MND One (1) Electronic copy of the responses Three (3) Copies of the Administrative Final MND (with technical appendices and exhibits) Twenty -five (25) Copies of the Final MND (with technical appendices and exhibits) One (1) Camera - ready, unbound original of the Final MND (with technical appendices and exhibits) Notice of Determination Filing (i.e., NOD and CDFG De Minirnis notice, if applicable) Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY III. PROJECT SCHEDULE A project schedule has been developed and presented below that reflects the time frames that will be necessary to undertake and complete the services outlined in this proposal. The project schedule is presented below. Project Schedule Proposed Equestrian Facility in Santa Ana Heights Newport Beach, California Task I Description Estimated Time Project Initiation /Coordination As Required 2 Records Surve IS8 18 Consultation 2 Weeks 3 Technical Studies 4 — 5 Weeks 4 K Initial Study/Negative Declaration 8 Weeks Cit Review 1 Week Public Review and Comment 4 Weeks 51 Final Mitigated Negative Declaration 2 Weeks 6 Miti ation Monitoring and Reporting Program 1 Week 7 1 Public Hearin s As Required 8 1 Filing of Legal Notices 1 Da 'If additional technical studies are required, this task may require additional time. 2Includes 4 weeks in Task 3. Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY IV. ESTIMATED BUDGET The scope of services and work described in Section I will be undertaken and completed for a not -to- exceed fee of $39,273.00. This fee includes meetings and coordination, preparation of the environmental analysis contained in the initial study, preparation of necessary CEQA notices, printing as indicated below, and attendance at public hearings and meetings associated with the Initial Study/ Negative Declaration. A budget summary is presented below. Budget Summary Santa Ana Heights Equestrian Facility Newport Beach, CA Title I Man -Hours Billies Rate Estimated Budget Task One — Project Initiation /Coordination Principal 1 48 1 $115.00 /Hour $ 5,520.00 Task Two — Technical Studies Engineering/WQMP _T $10,000.00 Biological Resources $ 3,290.00 Archaeological Records Survey $ 250.00 Sub -Total $13,540.00 Task Three — Initial Stud /Mitigated Negative Declaration Principal /Project Manager 8 $115.00 /Hour $ 920.00 Report Preparation 20 $ 80.00 /Hour $ 1,600.00 Research and Analysis 40 $ 65.00 /Hour $ 2,600.00 Graphics 4 $ 55.00 /Hour $ 220.00 Word Processing /Administration 8 $ 40.00 /Hour $ 320.00 Sub -Total 188 $ 5,660.00 Task Four — Final Negative Declaration Principal /Project Manager 4 $115.00 /Hour $ 460.00 Report Preparation 8 $80.00 /Hour $ 640.00 Word Processing /Administration 2 $40.00 /Hour $ 80.00 Sub -Total 36 $ 1,180.00 Task Five — Mitigation Monitoring and Reporting Program Report Preparation 4 $80.00 /Hour $ 320.00 Word Processing /Administration 2 $40.00 /Hour $ 80.00 Sub -Total 24 $ 400.00 Task Six — Public Hearin s Principal 8 $115.00 /Hour $ 920 Task Seven - Legal Notices /Notice of Determination Word Processing /Administration 4 V40 1 $ 160.00 Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY Title I Man -Hours I Billing Rate Estimated Budget Task Eight — Permit Processin Principal 40 $115.00 /Hour $ 4,600.00 Contingency Fees Engineering $ 5,000.00 1 F_$ 5,000.00 Printing and Re roduction Printing and Reproduction $ 1,500.00 Postage and Supplies $ 400.00 Supplies $ 100.00 Title Report $ 250.00 NOD Filing Fee $ 43.00 Sub -Total $ 2,293.00 TOTAL NOT -TO- EXCEED FEE 328 $39,273.00 'Includes attendance at five (5) workshops and/or public hearings, including those before the City's Environmental Review Board, Planning Commission, and City Council. Attendance at additional meetings and /or hearings is not included and would be billed on a time -and- materials basis at $115.001hour. 2Includes printing of fifty (50) copies of the Draft MIND and distribution of the IS /MND via certified mail. 3Contingency fees include engineering fees that may be necessary to provide additional water quality analysis and /or address technical issues related to the CDP °Total does not include the following fees: (1) sub - consultant fees identified in Task 2 that are the responsibility of the project applicant; (2) DFG filing fees, which are required at the time the Notice of Determination is filed with the Orange County Clerk Recorder ($1,250.00 DFG fee, if it is determined that the proposed project is not exempt), and 3 fees for legal notices. Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY V. BILLING AND PAYMENT All charges shall be in accordance with the Budget Summary presented in Section IV of this proposal. Invoices shall be submitted on a monthly basis, which clearly describe the specific services and tasks performed during the billing period. Each invoice is due and payable within 30 days of receipt and shall be considered delinquent on the 31s` day. Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 9 j PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY VI. PROJECT MANAGEMENT AND PERSONNEL Keeton K. Kreitzer, Principal of Keeton Kreitzer Consulting, will serve as Project Manager for the scope of work presented in this proposal for environmental consulting services. Mr. Kreitzer has over 30 years of environmental planning experience and has served as project manager for several similar projects. He has been personally responsible for the preparation of over 100 environmental documents required pursuant to the California Environmental Quality Act and has also prepared environmental studies mandated under the National Environmental Policy Act. He has recently reestablished his own environmental consulting firm (Keeton Kreitzer Consulting) in order to provide public and private sector clients with high level, personalized environmental consulting services, including the preparation of environmental documents pursuant to CEQA and NEPA. He is currently managing the preparation of several environmental documents, including those for the Newport Banning Ranch Local Coastal Program in the County of Orange, West Coyote Hills in the City of Fullerton, the Emery Ranch residential development plans in the Cities of La Mirada and Fullerton, and for the Central City Redevelopment Project Area in the City of Bell Gardens. Mr. Kreitzer's resume has been included with this scope of work. Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 10 "r PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY VII. RESPONSIBILITY OF THE PROJECT APPLICANT AND /OR CITY OF NEWPORT BEACH The following information shall be provided to KKC by the project Applicant: and/or the City of Newport Beach in order to complete the analysis described in this proposal, 1. A complete description of the proposed project, including all currently held plans, maps and background information as well as the proposed development program parameters. 2. Exhibits illustrating the existing site development. 3. Site Plan and Engineering Plans and Specifications (as determined necessary by the City of Newport Beach). 4. All environmental documents prepared for the proposed project, including but not limited to: Phase I and II Assessments, hydrology and water quality assessments, soils and geology, biological assessment, traffic studies, etc., that have been prepared for the proposed project or in the vicinity of the proposed project. 5. All technical studies determined necessary to complete the environmental analysis as stipulated in Task Two, including: the hydrology analysis, traffic analysis, and geotechnical analysis). 6. Existing topographic map (if available). 7. Aerial photograph (if available). 8. City of Newport Beach General Plan, Zoning code, and Santa Ana Heights Specific Plan. Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 11 , "i PROPOSAL FOR ENVIRONMENTAL CONSULTING SERVICES SANTA ANA HEIGHTS EQUESTRIAN FACILITY VIII. STATEMENT OF OFFER/TERMS OF AGREEMENT KKC is prepared to begin work on this project immediately upon execution of the contract. You may be assured that should we be selected to provide the environmental services described in this proposal, we shall devote our full resources to the project and will approach it with the highest degree of enthusiasm, objectivity, and professionalism. KKC will perform all work described in this proposal for a budget of $ 39,273.00. This offer is valid for a period of sixty (60) days. It should be emphasized that these costs are based upon our assumptions made on the scope of the project. Should the scope change significantly, necessitating a change to the work program, we will contact you immediately and amend both the scope of services and budget accordingly. Offer Presented By: Keeton K. Kreitzer, Principal KEETON KREITZER CONSULTING Proposal for Environmental Consulting Services Santa Ana Heights Equestrian Facility March 2006 12