HomeMy WebLinkAbout17 - Coastal Commission Application Preparation & ProcessingCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 17
June 8, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Michael J. Sinacori, P.E.
949 - 644 -3342 or Msinacori @newportbeachca.gov
SUBJECT: CALIFORNIA COASTAL COMMISSION APPLICATION PREPARATION
AND PROCESSING— APPROVAL OF PROFESSIONAL SERVICES
AGREEMENT WITH SCHMITZ & ASSOCIATES
Recommendation:
Approve a Professional Services Agreement with Schmitz & Associates, Inc. (Schmitz) of
Malibu, California, to conduct California Coastal Commission application preparation and
processing at a contract price of $154,750 and authorize the Mayor and City Clerk to
execute the Agreement.
Discussion:
The City is currently working on two large complex projects, Sunset Ridge Park and
Marina Park, which will require Coastal Development Permits (CDP) from the California
Coastal Commission. Due to the varying degree of regulations, regional agency
permits and site specific issues, and complexities of the CDP review process, staff
believes that it would be beneficial to utilize a consultant with extensive experience in
applying for and processing CDP's through the California Coastal Commission on these
projects.
In accordance with Council Policy F -14, staff developed and sent out a "Request for
Qualifications" (RFQ) for coastal development permit assistance in March of this year.
We received seven proposals in response to the RFQ. A staff review committee
evaluated the qualifications packages and interviewed the top five qualified firms.
Based on the interviews of these firms as well as the possible issues associated with
these two projects, staff is recommending that Council retain the consulting services of
Schmitz & Associates, Inc. of Malibu, California, to conduct California Coastal
Commission application preparation and processing at a not to exceed contract price of
$154,750.
Schmitz's rates are competitive and in line with industry standards. Staff also received
very positive feedback during our reference check discussions with his current and prior
Approval of Professional Services Agreements with Don Schmitz & Associates, Inc.
June 8, 2010
Page 2
clients. Donald Schmitz, the firm's president, has a strong understanding of the Coastal
Act and CDP process, and appears to have good working relationships with Coastal
Commission staff as well as the Commissioners. In addition, City staff has observed
Mr. Schmitz present projects at Coastal Commission hearings, and believe that he
demonstrated good understanding of the technical issues and strong advocacy for his
clients. Staff feels that this experience should assist the City when dealing with
complex regulations or difficult issues that may arise during the CDP process.
The fee includes the potential to process two separate CDPs for the Marina Park
Project, if it appears that approval for Phases I and II could be achieved more quickly
than for all three phases of the project. If it is determined that a single CDP for the
entire project can be completed within an acceptable timeframe, the fee will be reduced
by $48,750 for a total contract price of $106,000.
Environmental Review:
No Environmental clearances are required for this action. Certified Environmental
Impact Reports have been completed for both Sunset Ridge Park and Marina Park.
Funding Availability:
There are sufficient funds available in the following accounts for this contract:
Account Description
General Fund (Marina Park)
General Fund (Sunset Ridge Park)
Prepared by:
Mi ael J. Sinac ri, P.E.
Assistant City Engineer
Account Number
7411- C4002002
7412- C5100515
Total
Sub itted by:
Amount
$103,500
$51,250
$154,750
David A. Webb, P.E.
Deputy Public Works Director/
City Engineer
Attachment: Professional Services Agreement with Schmitz & Associates, Inc
PROFESSIONAL SERVICES AGREEMENT WITH
SCHMITZ & ASSOCIATES, INC. FOR
CALIFORNIA COASTAL COMMISSION APPLICATIONS OF
MARINA PARK AND SUNSET RIDGE PARK
THIS AGREEMENT is made and entered into as of this day of
2010, by and between the CITY OF NEWPORT BEACH, a Municipal
Corporation ( "City "), and SCHMITZ & ASSOCIATES, INC., a California corporation
whose address is 29350 Pacific Coast Highway, Suite 12, Malibu, California, 90265
( "Consultant "), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City is planning to apply for Coastal Development Permits from the California
Coastal Commission for Marina Park and Sunset Ridge Park.
C. City desires to engage Consultant to provide professional services in the
preparation and processing of the California Coastal Commission's Coastal
Development Permits Applications for Marina Park and Sunset Ridge Park
( "Project ").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Consultant for purposes of Project, shall be Donald W.
Schmitz, II, AICP.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 31St day of December, 2011, 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.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included in
Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in
termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due to
causes beyond Consultant's reasonable control. However, in the case of any such
delay in the services to be provided for the Project, each party hereby agrees to provide
notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for
performance in writing to the Project Administrator not later than ten (10)
calendar days after the start of the condition that purportedly causes a
delay. The Project Administrator shall review all such requests and may
grant reasonable time extensions for unforeseeable delays that are
beyond Consultant's control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on a time and expense not -to- exceed basis in
accordance with the provisions of this Section and the Schedule of Billing Rates
attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed One Hundred Fifty -Four
Thousand, Seven Hundred Fifty Dollars and no /100 ($154,750.00) without prior
written authorization from City. No billing rate changes shall be made during the term of
this Agreement without the prior written approval of City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and /or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
Professional Services Agreement Page 2
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of the
Project. This Project Manager shall be available to City at all reasonable times during
the Agreement term. Consultant has designated DONALD W. SCHMITZ II, AICP to be
its Project Manager. Consultant shall not remove or reassign the Project Manager or
any personnel listed in Exhibit A or assign any new or replacement personnel to the
Project without the prior written consent of City. City's approval shall not be
unreasonably withheld with respect to the removal or assignment of non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. MIKE
SINACORI, or his designee, shall be the Project Administrator and shall have the
authority to act for City under this Agreement The Project Administrator or his
Professional Services Agreement Page 3
authorized representative shall represent City in all matters pertaining to the services to
be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City. By
delivery of completed work, Consultant certifies that the work conforms to
the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
work promptly, or delay or faulty performance by City, contractors, or
governmental agencies,
Professional Services Agreement Page 4
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, agents, volunteers
and employees (collectively, the "Indemnified Parties) from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim, collectively, "Claims "), which may arise from or in any manner
relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the
Consultant or its principals, officers, agents, employees, vendors, suppliers,
subconsultants, subcontractors, anyone employed directly or indirectly by any of them
or for whose acts they may be liable or any or all of them.
Notwithstanding the foregoing, nothing herein shall be construed to require Consultant
to indemnify the Indemnified Parties from any Claim arising from the sole negligence,
active negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by
the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of
the performance or to exercise a measure of control over Consultant shall mean only
that Consultant shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the work
to be performed. City agrees to cooperate with the Consultant on the Project.
Professional Services Agreement Page 5
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project direction with
City's Project Administrator in advance of all critical decision points in order to ensure the
Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of the
Project, activities performed and planned, and any meetings that have been scheduled or
are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement, policies of insurance of the type and amounts described below and
in a form satisfactory to City.
A. Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this contract.
City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Consultant shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the work
hereunder by Consultant, his agents, representatives, employees or
subconsultants. The cost of such insurance shall be included in
Consultant's bid.
B. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A- (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
C. Coverage Requirements
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and
Employer's Liability Insurance (with limits of at least $1,000,000) for
Consultant's employees in accordance with the laws of the State of
Professional Services Agreement Page 6
California, Section 3700 of the Labor Code In addition, Consultant
shall require each subconsultant to similarly maintain Workers'
Compensation Insurance and Employer's Liability Insurance in
accordance with the laws of the State of California, Section 3700
for all of the subconsultant's employees.
Any notice of cancellation or non - renewal of all Workers'
Compensation policies must be received by City at least thirty (30)
calendar days (10 calendar days written notice of non - payment of
premium) prior to such change.
Consultant shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City,
its officers, agents, employees and volunteers.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than $1,000,000
per occurrence for bodily injury, personal injury, and property
damage, including without limitation, blanket contractual liability.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than $1,000,000 combined single limit for each accident.
iv. Professional Liability (Errors & Omissions) Coverage. Consultant
shall maintain professional liability insurance that covers the
services to be performed in connection with this Agreement, in the
minimum amount of $1,000,000 limit per claim and in the
aggregate.
D. Other Insurance Provisions or Requirements
The policies are to contain, or be endorsed to contain, the following provisions:
Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents,
officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a
loss. Consultant hereby waives its own right of recovery against
City, and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
ii. Enforcement of Contract Provisions. Consultant acknowledges
and agrees that any actual or alleged failure on the part of the City
to inform Consultant of non - compliance with any requirement
Professional Services Agreement Page 7
imposes no additional obligations on the City nor does it waive any
rights hereunder.
iii. Requirements not Limiting. Requirements of specific coverage
features or limits contained in this Section are not intended as a
limitation on coverage, limits or other requirements, or a waiver of
any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue and is not intended by any party
or insured to be all inclusive, or to the exclusion of other coverage,
or a waiver of any type.
iv. Notice of Cancellation. Consultant agrees to oblige its insurance
agent or broker and insurers to provide to City with 30 days notice
of cancellation (except for nonpayment for which 10 days notice is
required) or nonrenewal of coverage for each required coverage.
E. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Consultant's performance under this Agreement.
F. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be provided
under this Agreement shall not be assigned, transferred contracted or subcontracted
out without the prior written approval of City. Any of the following shall be construed as
an assignment: The sale, assignment, transfer or other disposition of any of the issued
and outstanding capital stock of Consultant, or of the interest of any general partner or
joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -
venture or syndicate or cotenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -
five percent (25 %) or more of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of Consultant.
Assignments of any or all rights, duties or obligations of the Consultant under this
Agreement will be permitted only with the express written consent of City. Consultant
shall not subcontract any portion of the work to be performed under this Agreement
without the prior written authorization of City.
Professional Services Agreement Page 8
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing produced
(hereinafter "Documents "), prepared or caused to be prepared by Consultant, its
officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole
right to use such materials in its discretion without further compensation to Consultant
or any other party. Consultant shall, at Consultant's expense, provide such Documents
to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant pursuant to
this Agreement are not intended or represented to be suitable for reuse by City or
others on any other project. Any use of completed Documents for other projects and
any use of incomplete Documents without specific written authorization from Consultant
will be at City's sole risk and without liability to Consultant. Further, any and all liability
arising out of changes made to Consultant's deliverables under this Agreement by City
or persons other than Consultant is waived against Consultant and City assumes full
responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and communications
that result from the services in this Agreement, shall be kept confidential unless City
authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement of any
United States' letters patent, trademark, or copyright infringement, including costs,
contained in Consultant's drawings and specifications provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed
under this Agreement. Consultant shall maintain complete and accurate records with
respect to the costs incurred under this Agreement and any services, expenditures and
disbursements charged to City, for a minimum period of three (3) years, or for any
longer period required by law, from the date of final payment to Consultant under this
Agreement. All such records and invoices shall be clearly identifiable. Consultant shall
allow a representative of City to examine, audit and make transcripts or copies of such
records and invoices during regular business hours. Consultant shall allow inspection
of all work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
Professional Services Agreement Page 9
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of the
dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or his /her designee with respect to such
disputed sums. Consultant shall be entitled to receive interest on any withheld sums at
the rate of return that City earned on its investments during the time period, from the
date of withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
borne by Consultant. Nothing in this paragraph is intended to limit City's rights under
the law or any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
24. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the work performed
under this Agreement, and (2) prohibits such persons from making, or participating in
making, decisions that will foreseeably financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to
do so constitutes a material breach and is grounds for immediate termination of this
Agreement by City. Consultant shall indemnify and hold harmless City for any and all
claims for damages resulting from Consultant's violation of this Section.
25. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United
States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Consultant to City shall be addressed to
City at:
Professional Services Agreement Page 10
Attn: Mike Sinacori
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 - 644 -3342
Fax: 949 - 644 -3318
All notices, demands, requests or approvals from CITY to Consultant shall be addressed
to Consultant at:
Attention: Donald W. Schmitz ll, AICP
Schmitz & Associates, Inc.
29350 Pacific Coast Highway, Suite 12
Malibu, CA 90265
Phone: 310 - 589 -0773
Fax: 310- 589 -0353
26. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Contract and Contract documents, the Consultant shall be
required to file any claim the Consultant may have against the City in strict conformance
with the Tort Claims Act (Government Code sections 900 et seq.).
27. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in default
in the performance of this Agreement. If such default is not cured within a period of two
(2) calendar days, or if more than two (2) calendar days are reasonably required to cure
the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non - defaulting party may
terminate the Agreement forthwith by giving to the defaulting party written notice
thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion and
without cause, of terminating this Agreement at any time by giving seven (7) calendar
days prior written notice to Consultant. In the event of termination under this Section,
City shall pay Consultant for services satisfactorily performed and costs incurred up to
the effective date of termination for which Consultant has not been previously paid. On
the effective date of termination, Consultant shall deliver to City all reports, Documents
and other information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
Professional Services Agreement Page 11
28. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state, county
or municipal, whether now in force or hereinafter enacted. In addition, all work prepared
by Consultant shall conform to applicable City, county, state and federal laws, rules,
regulations and permit requirements and be subject to approval of the Project
Administrator and City.
29. WAIVER
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or
any other term, covenant or condition contained herein, whether of the same or a
different character.
30. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements
of whatsoever kind or nature are merged herein. No verbal agreement or implied
covenant shall be held to vary the provisions herein.
31. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the
Scope of Services or any other attachments attached hereto, the terms of this
Agreement shall govern.
32. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by
both Consultant and City and approved as to form by the City Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
Professional Services Agreement Page 12
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating
to it and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment because
of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
yn e uchamp,
Assistant Cit ttorney
ATTEST:
By:
Leilani I. Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
M
Keith D. Curry,
Mayor
CONSULTANT:
SCHMITZ & ASSOCIATES, INC.
al
Donald W. Schmitz Il, AICP,
Chief Executive Officer and
Chief Financial Officer
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Professional Services Agreement Page 13
EXHIBIT A
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Estimate
Phase I: Project Evaluation: Review potential policy changes and /or modifications to
plan /strategy precipitated by Coastal Commission review of CDP Application #1
$2,000
1) Review and analysis of relevant project documents - including Coastal Commission Conditions of
Approval, Coastal Commission transcripts, etc., new public comment letters, etc.
2) Communications with Project's technical consultants as required to address potential new issues
raised during Coastal Commission Application #1. -
3) Communications /Meetings with City officials and staff as necessary.
4) Meetings /Communications with CCC Senior Staff to discuss issues raised in CDP Application #1 as it
pertains to CDP Application #2f.
Phase II: CDP Application Preparation
$6,000
Assist City staff with preparation of CDP application, including alternatives analyses.
Phase III: CDP Application Processing /Advocacy with Staff**
$14,500
1) Meetings /Communications with CCC Senior Staff just prior to submittal of CDP Application.
2) Meetings /Communications with CCC staff to respond to any incompletion letters issued and address
any questions raised subsequent to application submittal. Work with City staff to prepare supplemental
project analysis and information in support of project as appropriate to respond to Coastal staff issues.
Also, work closely with Coastal staff to ensure expeditious processing of application.
3) Meetings /Communications with CCC staff to advocate for favorable recommendations and special
conditions in their Staff Report. Review staff report upon issuance and coordinate with Staff on any
areas of concern. Concurrent meetings /communications with City of Newport Beach staff and technical
consultants as required.
Phase IV: CDP Application Hearing Preparation and Representation
1) Preparation of Presentation Materials (PowerPoint, Exhibits /Handouts for Commissioners, etc.) in
Support of Project for CCC Hearing.
$7,500
2) Communications /Meetings with Coastal Commissioners * ** in advance of Hearing to advocate project.
$10,000
4) Review and assess any adverse comment letters received prior to Hearing and prepare additional
presentation materials to rebut any opposition (estimate & exclusive of total) . "`"
$6,000
5) Representation of Project at Coastal Hearing by Don Schmitz. ** * **
$2,750
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*' This estimate does not include activities associated with any substantial revisions to the proposed project.
S &A will review with the City the extent of lobbying required for the Marina Park project.
"` "This estimate does not include S &A's services associated with meetings /communications to directly respond to
project opponents nor written responses to public agencies to counter such opposition for administrative record
purposes.
This fee does not include travel and lodging costs or other approved Consultant "Expenses" that are submitted in
writing prior to expenditure and which are preapproved by City. This estimate covers our services (not approved
costs /expenses).
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Estimate
Phase I: Due Diligence: Comprehensive understanding of Project required to effectively
advocate before the CCC.
$8,000
1) Review and analysis of all relevant project documents - including but not limited to EIR, City staff
reports, Planning Commission and City Council hearing transcripts, property technical reports, project
surveys and plans, reviewing agency comment letters, wetlands related codes, regulations cases, etc.
2) Communications with Project's technical consultants as required while completing review of their
technical documents and plans.
3) Communications /Meetings with City officials and staff as necessary.
4) Meetings /Communications with CCC Senior Staff to preliminarily discuss issues raised in their EIR
comment letter; these discussions will aid us in the preparation of the CDP application as well as in
future negotiations with Staff.
Phase II: CDP Application Preparation
$6,000
Assist City staff with preparation of CDP application, including alternatives analyses.
Phase III: CDP Application Processing /Advocacy with Staff**
$14,500
1) Meetings /Communications with CCC Senior Staff just prior to submittal of CDP Application.
2) Meetings /Communications with CCC staff to respond to any incompletion letters issued and address
any questions raised subsequent to application submittal. Work with City staff to prepare supplemental
project analysis and information in support of project as appropriate to respond to Coastal staff issues.
Also, work closely with Coastal staff to ensure expeditious processing of application.
3) Meetings /Communications with CCC staff to advocate for favorable recommendations and special
conditions in their Staff Report. Review staff report upon issuance and coordinate with Staff on any
areas of concern. Concurrent meetings /communications with City of Newport Beach staff and technical
consultants as required.
Phase IV: CDP Application Hearing Preparation and Representation
1) Preparation of Presentation Materials (PowerPoint, Exhibits /Handouts for Commissioners, etc.) in
Support of Project for CCC Hearing.
$7,500
2) Communications /Meetings with Coastal Commissioners— in advance of Hearing to advocate project.
$10,000
4) Review and assess any adverse comment letters received prior to Hearing and prepare additional
presentation materials to rebut any opposition (estimate & exclusive of total) . ""
$6,000
5) Representation of Project at Coastal Hearing by Don Schmitz. * " * **
$2,750
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' Should the City proceed with one Coastal Development Permit for all three phases, the fee noted includes the work
effort for one CDP.
This estimate does not include activities associated with any substantial revisions to the proposed project.
"` S &A will review with the City the extent of lobbying required for the Marina Park project.
- -This estimate does not include S &A's services associated with meetings /wmmumcations to directly respond to
project opponents nor written responses to public agencies to counter such opposition for administrative record
purposes.
*'***This fee does not include travel and lodging costs or other approved Consultant "Expenses" that are submitted in
writing prior to expenditure and which are preapproved by City. This estimate covers our services (not approved
costs /expenses).
Phase I: Due Diligence: Comprehensive understanding of Project required to
effectively advocate before the CCC. $8,000
1) Review and analysis of all relevant project documents - including but not limited to EIR, City
staff reports, Planning Commission and City Council hearing transcripts, property technical
reports, project surveys and plans, comment letters, applicable Banning Ranch project proposals,
correspondences, potential access agreements.
2) Communications with Projects technical consultants as required while completing review of
their technical documents and plans.
3) Communications /Meetings with City officials and staff as necessary.
Phase II: CDP Application Preparation $6,000
Assist City staff with preparation of CDP application, including alternatives analyses.
Phase III: CDP Application Processing /Advocacy with Staff' $11,000
1) Meetings /Communications with CCC Senior Staff prior to submittal of CDP Application.
2) Meetings /Communications with CCC staff to respond to any incompletion letters issued and
address any questions raised subsequent to application submittal. Work with City staff to prepare
supplemental project analysis and information in support of project as appropriate to respond to
Coastal staff issues. Also, work closely with Coastal staff to ensure expeditious processing of
3) Meetings /Communications with CCC staff to advocate for favorable recommendations and
special conditions in their Staff Report. Review staff report upon issuance and coordinate with
Staff on any areas of concern. Concurrent meetings /communications with City of Newport Beach
staff and technical consultants as required.
Phase IV: CDP Application Hearing Preparation and Representation
1) Preparation of Presentation Materials (PowerPoint, Exhibits /Handouts for Commissioners, etc.)
in support of Project for CCC Hearing. $7,500
2) Communications /Meetings with Coastal Commissioners — in advance of Hearing to advocate
project. $10,000
4) Review and assess any adverse comment letters received prior to Hearing and prepare
additional presentation materials to rebut any opposition. $6,000
5) Representation of Project at Coastal Hearing by Don Schmitz"' $2,750
This estimate does not include activities associated with any substantial revisions to the project that may be
proposed. A separate estimate will be prepared if the project is revised during CDP processing.
" 5 &A will review with the City the extent of lobbying required for the Sunset Ridge Park project.
"'This fee does not include travel and lodging costs or other City approved expenses pursuant to the terms of
the consuling agreement. This is a services estimate only.
EXHIBIT B
SCHMITZ & ASSOCIATES, INC.
RATESCHEDULE
Principal .................. _ .. _ .... .. ..
Regional Manager .......... _ . _ .. _ ........ .
Project Team Manager .............. .......
Special Projects Manager .. . ................. .
Senior Planner 11 . ...................... ...
Senior Planner I .............................
Associate Planner II . . ......................
Associates Planner I ..........................
Planning Technician ..........................
$275 /hr
$175 /hr
5165/hr
S165/hr
$145 /hr
S t 35/13r
$120 /hr
$11 WILT
$85/hr
HEADQUARTERS OFFICE REGIONAL OFFICE
MALIBU OFFICE CONEJO VALLEY OFFICE
29350 PACIFIC COAST Hwy, SUITE 12 5234 CHESEBRO ROAD, SUITE 200
MALIBU, CA 90265 AGoURA HILLS, CA 91301
TEL 310.589.0773 FAX: 310.589.0353 TEL: 818.338.3636 FAX 818.338.3423