HomeMy WebLinkAbout08 - Newport Banning Ranch Development PSACITY OF
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NEWPORT BEACH
City Council Staff Report
Agenda Item No. 8
April 26, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Dana Smith, Assistant City Manager
949 - 644 -3002, dsmith @newportbeachca.gov
PREPARED BY: Terresa Moritz
APPROVED: ,' w M� n�
TITLE: Professional Services Agreement with Bonterra Consulting LLC for
Environmental Services Related to Newport Banning Ranch
Development
ABSTRACT:
Community Development staff requests approval of a professional services agreement
with Bonterra Consulting for environmental services for Newport Banning Ranch.
RECOMMENDATION:
Receive and file.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item. The entire cost of these consulting services
will be reimbursed to the City by the applicant, Newport Banning Ranch, LLC
DISCUSSION:
Newport Banning Ranch, LLC has filed an application for a Planned Community
Development Plan, Master Development Plan, Zoning Code Amendment, and Vesting
Tentative Tract Map to allow development of the Banning Ranch property as allowed in
the General Plan. The application may also require the approval of amendments to the
General Plan Circulation Element and the Master Plan of Arterial Highways. The
proposed development would include 1,375 residential units, 75,000 square feet of
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PSA with Bonterra Consulting LLC for Newport Banning Ranch
April 26, 2011
Page 2
commercial use, 75 overnight accommodations, 45 acres of parks and 243 acres of
open space.
The project requires the preparation of an environmental impact report (EIR). The City
previously entered into a professional services agreement with Bonterra Consulting LLC
for preparation of a screencheck and Draft EIR for the project. This agreement expired
in February 2011 and a new agreement is needed to complete the EIR. Furthermore, as
the project has advanced, the City has identified additional services, over and above the
scope of services approved in the initial agreement and amendments to the agreement,
which are required in order to complete the City's review of the project. Changes to the
project includes incorporation of the community park as part of the project -level
entitlements; an updated traffic study to reflect methodology directives identified in the
appellate court ruling in Sunnyvale West Neighborhood Association v. City of Sunnyvale
City Council; and revisions to the air quality, air toxics, and greenhouse gas (GHG)
emissions analyses will be made based on the need to update these analyses using the
new State Air Quality Management District's California Emissions Estimator Model
(CalEEMod). The project scope has also been revised to include services necessary
for completion of the Final EIR, including responses to comments on the Draft EIR.
The orgininal agreement and amendments were for an amount not to exceed
$1,842,074.58. The new agreement includes a $429,080.90 augment, bringing the total
amount not to exceed $2,271,155.48_
ENVIRONMENTAL REVIEW:
Retention of consultants is not a project as defined by CEQA
Submitted by:
Dana Smith
Assistant City Manager
Attachments: A. Professional Services Agreement with Bonterra Consulting LLC
2
PROFESSIONAL SERVICES AGREEMENT WITH
BONTERRA CONSULTING LLC FOR ENVIRONMENTAL SERVICES
RELATED TO NEWPORT BANNING RANCH DEVELOPMENT
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made
and entered into as of this day of April, 2011, by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation ( "City "), and, Bonterra
Consulting, LLC, a California limited liability company, whose address is 151 Kalmus
Drive, Suite E -200, California, 92626 ( "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 considering an application for the development of Banning Ranch.
C. City desires to engage Consultant to complete the Draft Environmental Impact
Report (EIR) for the proposed development in accordance with the California
Environmental Quality Act (CEQA) ( "Project ").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member[s] of Consultant for purposes of Project, shall be Dana C.
Privitt.
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 June 30, 2012, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of Services
attached hereto as Exhibit A and incorporated herein by reference ( "Services" or
"Work "). The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
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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 B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Four Hundred Twenty -
Nine Thousand and Eighty Dollars and 901100 ($429,080.90) 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:
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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 Dana C. Privitt, 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 Community Development Department.
PATRICK ALFORD 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 or
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:
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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 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, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
Work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, agents, volunteers,
and employees (collectively, the "Indemnified Parties ") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement, or
Consultant's presence or activities conducted on the Project (including the negligent
and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents,
employees, vendors, suppliers, subconsultants, subcontractors, anyone employed
directly or indirectly by any of them or for whose acts they may be liable or any or all of
them).
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Notwithstanding the foregoing, nothing herein shall be construed to require Consultant
to indemnify the Indemnified Parties from any Claim arising from the sole negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be
construed as authorizing any award of attorney's fees in any action on or to enforce the
terms of this Agreement. This indemnity shall apply to all claims and liability regardless
of whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the Work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of
the performance or to exercise a measure of control over Consultant shall mean only
that Consultant shall follow the desires of City with respect to the results of the Services.
11. COOPERATION
Consultant agrees to Work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the Work
to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project direction
with City's Project Administrator in advance of all critical decision points in order to
ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
14. INSURANCE
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.
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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
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.
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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 sinale 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 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.
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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
City and Consultant agree that subconsultants may be used to complete the Work
outlined in the Scope of Services. The subconsultants authorized by City to perform
Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to
City for all acts and omissions of the subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. Except as specifically
authorized herein, the Services to be provided under this Agreement shall not be
otherwise assigned, transferred, contracted or subcontracted out without the prior
written approval of City.
17. OWNERSHIP OF DOCUMENTS
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
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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
All written documents shall be transmitted to City in the City's latest adopted version of
Microsoft Word and Excel and /or portable document format (.pdf).
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.
20. 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.
21. 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.
22. 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.
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23. 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.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
25. 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.
26. 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:
Attention: Patrick Alford
City of Newport Beach
Community Development Department - Planning
3300 Newport Blvd.
PO Box 1768
Newport Beach, CA 92658
Phone: 949- 644 -3235
Fax: 949 - 644 -3229
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All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Dana C. Privitt, AICP
Bon Terra Consulting
151 Kalmus Drive, Suite E -200
Costa Mesa, CA 92626
Phone: 714 - 444 -9199
Fax: 714 - 444 -9599
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.
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.
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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. 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.
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. 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.
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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE F TH CITY ATTORNEY
Date
By:
Leonie Mulvihill
Assistant City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Michael F. Henn
Mayor
CONSULTANT: BONTERRA CONSULTING.
LLC, a limited liability company
Date:
By:
Joan P. Kelly
Managing Member
Attachments: Exhibit A — Scope of Services
Exhibit B — Billing Rates
f: \temp \templates \contracts \form ceqa professional services agreement.dotx
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C. O N S U L T I N G
March 23, 2011
PASADENA COSTA MESA
T: (714( 444.9199 F. (714( 444 -9599 1 151 Kolmus Drive, Suite E -2W
a .SonTemaConsulfingxam Co <fa 114em, CA 92626
Mr. Patrick Alford VIA EMAIL AND MAIL
Planning Manager PAlford@newpoatbeachca.gov
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92663
Subject Newport Banning Ranch Project Consulting Services
Dear Mr. Alford:
Thank you for the opportunity to continue to work with the City of Newport Beach on the
Newport Banning Ranch Project. As a part of the City's Project Team for the Newport Banning
Ranch Project, BonTerra Consulting has been assisting the City in the preparation of California
Environmental Quality Act (CEQA) documentation for the proposed project.
At the request of the City, we have prepared a summary of the anticipated remaining work tasks
that are required associated with completion of the Draft Environmental Impact Report (EIR) for
release for public review. The work tasks identified in Attachment A are for the BonTerra
Consulting Project Team including but not limited to Kimley -Horn and Associates, Inc., CDM,
and VisionScape Imagery, Inc. We have also provided our billing rate sheet.
Please feel free to contact me if you have any questions or require additional information.
Sincerely,
BONT SU TING
Da a C. Privitt, AICP
Principal
A: TmleuswewponuotsrmposalsNada+ed sow- aazail.d=
r'
IENV10.0NMENTAL PInNNI
Z
1s&E50U &CE MANAGEMENT'
Newport Banning Ranch Pmiecl
ATTACHMENT A
• Meeting attendance. Attendance at and participation in project meetings including but
not be limited to meetings with City staff; meetings with the City and the Applicant's
project team; meetings with affected and interested parties, the latter including but not
limited to adjacent jurisdictions.
• Ongoing project management.
Section 1.0, Executive Summary, and Section 2.0, Introduction. Sections will be
updated based on changes in project assumptions (addressed below), and complete the
sections based on the City's review of the EIR prior to completion of the Draft EIR.
• Section 3.0, Project Description. Revisions associated with changes to the project and
applicable documentation (Master Development Plan, PC Text, etc.) will be made to the
Project Description. Changes include incorporation of the Community Park as a part of
the project -level entitlements for the project, and receipt of information regarding the
Development Agreement and affordable housing assumptions. All sections of the EIR
will be reviewed based on these changes.
• Section 4.1, Land Use and Related Planning Programs. Section will be updated
based on changes in project assumptions and the section will be completed based on
the City's review of the EIR prior to completion of the Draft EIR.
• Section 4.2, Aesthetics and Visual Resources. Section will be updated based on
changes to the project. Revisions will include updates to visual simulations and exhibits.
Section 4.3, Geology and Soils; Section 4.4, Hydrology and Water Quality, Section
4.5, Hazards and Hazardous Materials, Section 4.13, Cultural and Paleontological
Resources, and Section 4.15, Utilities. These sections are being reviewed again by
BonTerra Consulting prior to release of the Draft EIR.
• Section 4.6, Biological Resources. Additional data and mapping will be reviewed to
determine if any modifications to the analysis would be required.
• Section 4.7, Population, Housing, and Employment. Revisions to the EIR section will
be made based on changed assumptions for the provision of affordable housing
associated with the proposed project. This change will also require revisions to the
Project Description; Alternatives Section; and Cumulative Impacts Section.
• Section 4.8, Recreation and Trails. Changes to the Community Park land use
assumptions will be incorporated into this EIR section and evaluated.
• Section 4.9, Transportation and Circulation. Based on consultation with adjacent
jurisdictions, the traffic study will be updated to reflect changes in the Community Park
land use assumptions and potential modifications to overall traffic assumptions. The
traffic study will also be updated to reflect methodology directives identified in the
appellate court ruling in Sunnyvale West Neighborhood Association v. City of Sunnyvale
City Council. These updates will be incorporated into the Transportation and Circulation
Section; Alternatives Section; and Cumulative Impacts Section.
• Section 4.10, Air Quality and Section 4.11, Greenhouse Gas Emissions. Revisions
to the air quality, air toxics, and greenhouse gas (GHG) emissions analyses will be made
R: \Prolects�NmponU016\ Proposals \Updated SOW432311.docx A -1 Work Tasks
17
Ranch
based on the need to update these analyses using the new State Air Quality
Management District's California Emissions Estimator Model (CalEEMod). The analyses
will also be revised based on the updated traffic study. The Air Quality Section;
Greenhouse Gas Emissions Section; Cumulative Impacts Section; and Alternatives
Section will also be updated to reflect these changes.
• Section 4.12, Noise. Revisions to the noise analysis will be completed based on
changes identified above in the traffic study.
• Section 4.14, Public Services and Facilities. Revisions and new analysis in the Public
Services and Facilities Section will be completed based on changed assumptions for the
provision of fire services. This will also require changes to the Alternatives Section and
the Cumulative Impacts Section.
• Section 5.0, Cumulative Impact. Revisions will be made based on potential changes in
the technical analyses, project changes, and changes in the status of and additional
cumulative projects.
• Section 5.0, Long -term Implications of the Proposed Project. Section will be
updated based on changes in project assumptions and the section will be completed
based on the City's review of the EIR prior to completion of the Draft EIR.
• Section 6.0, Alternatives to the Proposed Project. Section will be revised based on
changes in project assumptions and technical analyses.
• Graphics. Revisions to and creation of new EIR graphics associated with project
modifications— including but not limited to the Community Park and updated traffic, air
quality, and noise analyses —will be completed.
• Other. Additional revisions will be made, as appropriate, upon submittal of a
comprehensive EIR to the City for review. BonTerra Consulting will be responsible for
revisions to the review document and publication of the Draft EIR.
R: \Pmjects\NewponUO15Pmposats \Updated SOW4332311.d= A -2 Work Tasks
W
C 'J N S 'J L 7 I Al G
JULY 2010 - JULY 2011 FEE SCHEDULE
PROFESSIONAL CLASSIFICATION
Principal
Associate Principal
Air Quality /Climate Change /Noise Manager
Regulatory Permitting Manager
Biological /Environmental Manager
Senior Planner /Senior Project Manager
Noise and Transportation Engineer
Senior Ecologist/Senior Restoration Ecologist
Project Manager
Cultural Resources Manager
Senior Biologist/Biological Project Manager
Air Quality /Climate Change /Noise Specialist
Planner /Assistant Project Manager
Field Monitor (depending on expertise)
Ecologist
GIS Specialist
Technical Writer /Editor
Graphic Artist
Project Assistant
Administrative Assistant
REIMBURSABLE COSTS
HOURLY BILLING RATE
$175 -225
150 -185
195 -205
155 -170
135 -155
120 -160
120 -150
120 -140
115 -140
120 -130
115 -140
100 -125
85 -110
75 -125
75 -95
85-95
85 -95
85 -95
70-75
70 -75
Mileage Federal Standard Mileage Rate
Reprographics (Outside) at cost plus 10%
Reprographics (Inside) Request Printing fee sheet
Other Out -of- pocket Expenses at cost plus 10%
Subconsultants at cost plus 10%
Plotting:
Field Maps $2.50 per sq ft
Display /Oversized /High Quality Graphics $10 per sq ft
Aerial Maps: Less than 500 acres $200
Aerial Maps: 500 -1,500 acres $350
Aerial Maps: Greater than 1,500 acres $500
151 Kalmus Drive, Suite E -200 Costa Mesa, CA 92626' (714) 444 -9199 (714) 444 -9599 Fax
3452 E. Foothill Blvd., Suite 420, Pasadena, CA 91107 ` (626) 351 -2000' (626) 351 -2030 Fax
19
C O N S U C 7! N G
An Environmental Planning/Resoume Management Corporation
Task Employee
Project Meetings
Project Mgmt.
Revised Screencheck EIR
K. Brady
D. Privitt
A. Johnston
Clerical
Administration
K. Brady
D. Privitt
A. Johnston
Administration
K. Brady
D. Privitt
A. Johnston
J. Kurtz
F. Sotelo
L. Robb
K. Quinn
J. Cho
J. Neary
M. Keith
GIS /Graphics
Editing
Word Processing
Clerical
Administration
Hours
Rate
Subtotal
Augment Request
78.0
$
205.00
$
15,990.00
$ 44,926.20
117.0
$
180.00
$
21,060.00
32.0
$
180.00
$
5,760.00
18.0
$
70.00
$
1,260.00
0.0
$
-
$
856.20
58.0
$
205.00
$
11,890.00
$ 33,609.00
117.0
$
180.00
$
21,060.00
0.0
$
175.00
$
-
0.0
$
-
$
659.00
40.0
$
205.00
$
8,200.00
$ 70,170.90
100.0
$
180.00
$
18;000.00
48.0
$
180.00
$
8,640.00
26.0
$
195.00
$
5,070.00
40.0
$
125.00
$
5,000.00
24.0
$
120.00
$
2,880.00
12.0
$
120.00
$
1,440.00
18.0
$
125.00
$
2,250.00
9.0
$
95.00
$
855.00
40.0
$
85.00
$
3,400.00
80.0
$
90.00
$
7,200.00
40.0
$
80.00
$
3,200.00
_
30.0
$
70.00
$
2,100.00
8.0
$
70.00
$
560.00
0.0
$
-
$
1,375.90
20
6enteme Nepmaamrvig Ranm.rotSAVgmennoat9tt Page 1 of 3
C 0 N S U IT I N G
An Environmental Planning/Resoume Management Corporation
Task
Employee
Hours
Rate
Subtotal
Augment Request
Draft EIR
K. Brady
24.0
$
205.00
$
4,920.00
$ 36,408.90
D. Privitt
36.0
$
180.00
$
6,480.00
A. Johnston
24.0
$
180.00
$
4,320.00
J. Kurtz
9.0
$
195.00
$
1,755.00
F. Sotelo
9.0
$
125.00
$
1,125.00
J. Cho
16.0
$
125.00
$
2,000.00
L. Robb
16.0
$
120.00
$
1,920.00
K. Quinn
9.0
$
95.00
$
855.00
M. Keith
16.0
$
85.00_
$
1,360.00
GIS
24.0
$
90.00
$
2,160.00
Editing
40.0
$
80.00
$
3,200.00
Word Processing
40.0
S
70.00
S
2,800.00
Clerical
40.0
$
70.00
S
2,800.00
Administration
0.0
$
-
S
713.90
Responses to Comments
K. Brady
100.0
$
205.00
$
20,500.00
$ 102,183.60
D. Privitt
200.0
$
180.00
$
36,000.00
A. Johnston
60.0
$
180.00
$
10,800.00
J. Kurtz
24.0
$
195.00
$
4,680.00
F. Sotelo
32.0
$
125.00
$
4,000.00
J. Cho
32.0
$
125.00
$
4,000.00
L. Robb
52.0
$
120.00
$
6,240.00
GIS
24.0
$
90.00
$
2,160.00
Editing
60.0
$
80.00
$
4,800.00
Word Processing
40.0
$
70.00
$
2,800.00
Clerical
60.0
$
70.00
$
4,200.00
Administration
0.0
S
-
$
2,003.60
Preparation of Findings
K. Brady
25.0
$
205.00
$
5,125.00
$ 46,272.30
D. Privitt
200.0
$
180.00
$
36,000.00
Editing
32.0
$
80.00
$
2,560.00
Word Processing
24.0
$
70.00
$
1,680.00
Administration
0.0
$
-
$
907.30
Hearings
K. Brady
32.0
$
205.00
$
6,560.00
$ 33,140.00
D. Privitt
65.0
$
180.00
$
11,700.00
A. Johnston
40.0
$
180.00
$
7,200.00
J. Kurtz
24.0
$
195.00
$
4,680.00
F. Sotelo
24.0
$
125.00
$
3,000.00
Word Processing
24.0
$
70.00
$
1,680.00
Administration
0.0
$
-
$
696.40
21
9ontena Nnrycnaa =Ng Ra =ft J015 AnmemA61911 Page 2 of 3
M Envimnmental Planning/Resoume Management Corporation
Task Employee Hours Rate
Subtotal
Augment Request
Total Professional Fees
$
366,710.90
SUBCONSULTANTITECHNICAL REPORTS
Requested
Augment
Traffic & Parking: Kimley -Horn for DEIR
$
22,000.00
Traffic & Parking: Kimley -Horn for Responses to Comments
$
20,000.00
Traffic & Parking: Kimley -Horn for Hearings
$.
6,500.00
Traffic Modeling: Urban Crossroads
$
3,300.00
Visual Simulations: VisionScape Imagery
$
4,900.00
Subconsultant Admin.
S
5,670.00
Total Subconsultant Fees
$
62,370.00
TOTAL AUGMENT REQUEST
$429,080.90
22
som.. Ne ,wsN�Nng,lariCt,.O1S:wgmeN-0a1911 Page 3 of 3