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HomeMy WebLinkAboutS19 - South Coast Shipyard EIR Agreement4 E CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT City Council Meeting October 14, 2003 Agenda Item: s19 October 9, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department James Campbell, (949) 644 -3210, jcampbell @city.newport- beach.ca.us SUBJECT: Professional' Services Agreement to prepare an Environmental Impact Report for the South Coast Shipyard and Design Center Mixed Use Project. RECOMMENDATION: Approve and authorize the City Manager to execute a Professional Services Agreement . with Hodge & Associates of Monarch Beach, California, for professional environmental services to prepare an Environmental Impact Report for a not to exceed cost of $73,060. DISCUSSION: William Blurock has submitted a Site Plan Review and Use Permit application to redevelop a 2.41 acre property located at 2300 Newport Boulevard. The project will remove most of the existing structures and uses at the site and construction will consist of a mixed -use (commercial /residential) project. Thirty loft style residential units are proposed above two partially subterranean parking garages and retail commercial space. The existing South Coast Shipyard & Design Center building that was used as a boat showroom building and the adjacent building to the west will be preserved for commercial use, and the remaining buildings and structures will be demolished. The total commercial area within the project will be approximately 30,000 square feet. The project includes the creation of a pedestrian boardwalk along the bulkhead satisfying public access requirements. The old warehouse buildings once used for boat construction will be eliminated and the existing boat repair activities and boat hoist will be transferred to the adjacent South Coast Shipyard or eliminated. The existing boat ways once used to pull boats out of the water are planned to be filled in and the bulkhead and marina are planned to be reconstructed. 0 South Coast Shipyard & Design Center Mixed Use Project October 9, 2003 Page 2 . Staff published a Draft Mitigated Negative Declaration (MND) that was published for public comment. Comments received on the document have led staff to conclude that an Environmental Impact Report should be prepared for the project. Issue areas are: biology related to the proposed filling of the bay, hazards related to the cleanup of contaminated sediments due to past use of the property; traffic circulation issues due to the location of the project at the mix master intersection and proposed access; and visual impacts. Hodge & Associates is the consultant who prepared the Draft MND and they have provided a proposal to prepare an Environmental Impact Report. A copy of the proposal is attached to the draft professional services agreement that is attached to this report. The proposal contains the scope of services through the completion of the Draft Project EIR. Staff has reviewed the scope of services and believes that it will be adequate to meet or exceed the minimum requirements set forth by the California Environmental Quality Act. The environmental consulting fees for tasks described in the scope of services including staff hours, technical studies, direct expenses, and printing have been reviewed by staff and are considered appropriate and warranted. Funding Availability: 0 The cost of the contract, including staff time associated with its review and production, will be the responsibility of the applicant and no general fund expenditures will occur. Prepared by: Submitted by: d mes W. Carfipbell Patricia L. Temple Senior Planner Planning Director Attachments: 1. Draft Professional Services Agreement with the proposal from Hodge & Associates. 0 PROFESSIONAL SERVICES AGREEMENT WITH HODGE & ASSOCIATES THIS AGREEMENT is made and entered into as of this day of 200_, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City"), Hodge & Associates, Inc., whose address is 24040 Camino Del Avion, Suite A -247, Monarch Beach, California. 92629, (hereinafter referred to as "Consultant'), 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 prepare an Environmental Impact Report and associated documents and reports in accordance with the California Environmental Quality Act for South Coast Shipyard and Design Center (PA2001- 210) located at 2300 Newport Boulevard in Newport Beach. C. City desires to engage Consultant to provide environmental consulting services for the Project upon the terms and conditions contained in this Agreement. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consultant for purposes of Project, shall be Cheryle L. Hodge and William E. Hodge. 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 _ day of , 2003, and shall terminate on the _ day of , 2004, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED i Consultant shall diligently perform all the services described in the Scope of Services attached 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. All work and documents shall be prepared in accordance with and shall contain all items required by the California Environmental Quality Act (CEQA), CEQA Implementing Guidelines and City of Newport Beach ordinances and policies. Consultant shall furnish all environmental documents and forms to City in electronic format, Microsoft Word 2000, or other format acceptable to City. 2.1 If Consultant is requested by City to revise or supplement the draft or final Environmental Impact Report, with additional data, information or analysis as a result of the Environmental Impact Report's failure to comply with requirements of CEQA, Consultant shall provide such revision or supplement at no additional cost to City provided that such revisions are within the scope of work required in Exhibit "A ". 2.2 If changes to existing laws, rules, regulations or policies of any state, federal or local governmental authority having jurisdiction over the project occur during the term of this Agreement that require modification of the draft or final Environmental Impact Report , Consultant will perform such additional services on a time - and - materials basis. 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. 2 0 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. In no event shall Consultant's compensation exceed Seventy Three Thousand and Sixty Dollars ($73,060) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 3.1 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. 3.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved 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. 3.3 Consultant shall not receive any compensation for Extra Work 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 set forth in Exhibit B. �3 3.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provide 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 Chervle L. Hodge 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 Planning Department. Patricia L. Temple, Planning Director shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project 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. 0 • 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. 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 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 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 work, activities performed and planned, and any meetings that have been scheduled or are desired. 0 0 • 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 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. 1. 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 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) days 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. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than two 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 7 to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. • 3. Automobile Liability Coveraqe. 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. 4. 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: i. 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 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) days written notice has been received by City. • G. 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. H. 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 written request. 0 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 the release of information. 19. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against 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 to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records 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 under this Agreement. 10 0 22. WITHHOLDINGS City may withhold payment 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 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. 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 any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS 0 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 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 11 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: Patricia L. Temple Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3200 Fax 644 -3299 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Cheryle L. Hodge Hodge & Associates 24040 Camino Del Avion, Suite A -247 Monarch Beach, CA 92629 Phone: (949) 661 -6488 Fax: (949) 661 -3791 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, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, 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 and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. i 12 0 LJ 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, 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. 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. 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. 34. 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. 13 35. EQUAL OPPORTUNITY EMPLOYMENT 0 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 OF NEWPORT BEACH A Municipal Corporation 25 Robin Clauson, Homer Bludau, City Manager Assistant City Attorney for the City of Newport Beach for the City of Newport Beach 0 ATTEST: CONSULTANT Bv: LaVonne Harkless Cheryle L. Hodge CITY Clerk Principal Attachments: Exhibit A — Scope of Services 0 14 HODGE & ASSOCIATES Environmental Planning 24040 Camino Del Avion, #A247, Monarch Beach, California 92629 October 7, 2003 City of Newport Beach Attn: Mr. James W. Campbell, Planning Dept. P.O. Box 1768 Newport Beach, CA 92658 -8915 RE: Proposal for Preparation of an EIR for the South Coast Shipyard & Design Center Project. Dear Mr.Campbell: Hodge & Associates (HAA) is pleased to submit a proposal for the preparation of an Environmental Impact Report (EIR) for the proposed South Coast Shipyard & Design • Center project. The project is located at 2300 Newport Boulevard in Newport Beach and consists of a mixed -use development with 30,000 square feet of commercial uses and 28 residential units. The proposed project also requires the demolition of existing buildings on the site (except for a 14,000 square foot building that faces Newport Boulevard). The proposed project also includes replacement of the existing bulkhead (along approximately 485 feet of waterfront), reconfiguration of the 19 -boat slip marina located in front of the project site, and closure of two existing boat slipways used for boat access and boat berthing. The project will require a Use Permit (UP2001 -38), Site Plan Review (SR2001- 004), Coastal Development Permit, and an Environmental Impact Report. Hodge & Associates (HAA) brings more than 15 years of land use and environmental planning experience to the City. Formed in 1991, HAA emphasizes personalized project management, quality work and excellent communications to ensure project success. HAA has provided professional environmental consultant services previously to Newport Beach, in addition to other public agencies such as the Cities of Fountain Valley, Buena Park, Mission Viejo, San Juan Capistrano, Tustin, Corona, and the County of Orange. HAA also maintains a working knowledge of current legal requirements and has the demonstrated ability to effectively interpret and apply them to circumstances of individual projects. We also maintain an outstanding reputation for a high degree of professionalism in producing thorough, objective environmental analyses. Based upon our understanding of the proposed project, Hodge & Associates submits the following proposal: Company Background • Hodge & Associates employs two full time professional staff members, Cheryle L. Hodge and William E. Hodge. Additional support staff services are regularly associated with Hodge & Associates on an independent basis including word processing, graphics, and general office duties. Upon determination that special expertise in a given discipline is required for a project, HAA will subcontract the services to be provided by technical professionals (i.e., biological, and civil engineering). In regards to the South Coast Shipyard project, HAA proposes subcontracting for biological resources assessment and visual analysis technical services. It is our understanding that technical studies (i.e. traffic and parking, Phase 1 report, etc.) will be provided to the City and CEQA consultant for review and use in the preparation of the subject EIR. Cheryle L. Hodge, HAA President, will serve as the Project Manager and will be directly involved in the preparation and processing the EIR and serve as a liaison to City staff and the applicant's representatives. Ms. Hodge possesses broad and deep experience in managing a wide variety of environmental and planning projects that range from discretionary entitlement permits to environmental impact reports. She has managed planning projects such as residential, commercial, transportation improvements, jail facilities, water storage structures, school district projects, and habitat restoration plans. Prior to forming Hodge & Associates in 1991, Ms. Hodge gained professional planning experience with a private sector consulting firm and the County of Orange. . William E. Hodge, Executive Vice President, will assist in the preparation of the EIR. Mr. Hodge brings more than 20 years of experience working with all levels of local government in transportation, land use and public policy issues. He served more than seven years as Director of External Affairs for the Orange County Transportation Authority, facilitating public meetings, outreach programs, communications and planning for Orange County transportation projects, including freeways, local streets and roads, and public transportation (both bus and light rail). He also served for five years as Executive Director of the Orange County Division, League of California Cities where he developed public policy positions and advocated them on behalf of elected officials from Orange County's 34 Cities and the City Managers Association. He also served with the County of Orange for nearly nine years, managing the County's Development Monitoring Program, which recommended infrastructure provision programs and standards to the Board of Supervisors in conjunction with South Orange County planned communities and development projects implemented though development agreements. Page 2 of 5 • A copy of our Statement of Qualifications is on file with the City of Newport Beach Planning Department. The resumes of Cheryle Hodge and William Hodge are attached in addition to a partial list of previous project experience and references. Scope of Work The following identifies the tasks associated with the preparation, processing, and management of the EIR for the South Coast Shipyard & Design Center project: Task 1 — Initial Study & Notice of Preparation - Upon authorization to proceed, we will meet with City staff to initiate preparation of a draft Initial Study (IS) and Notice of Preparation (NOP) for the project in compliance with Section 15082 of the CEQA Guidelines. The IS /NOP will include a description of the project and identify the process for preparation of the EIR. In compliance with the CEQA Guidelines the NOP is subject to a 30 -day comment period. 5 copies of the Screencheck IS /NOP and 30 copies (including 15 copies are to be submitted to the State Clearinghouse, Office of Planning & Research (OPR)) for public review distribution. Task 2 — Screencheck Draft EIR — HAA will prepare a Screencheck of the Draft EIR, which will include all EIR contents required in compliance with CEQA and the CEQA Guidelines. During preparation of the 1St Screencheck Draft EIR, HAA will closely coordinate with the City and applicant to ensure that the EIR is prepared in a manner that would require limited revisions prior to publication of the Draft EIR. Project alternatives to be included in the EIR will be developed in consultation with the City staff. It is anticipated that the 1St Screencheck Draft EIR will incorporate the technical studies currently being prepared for the project. HAA will also prepare a Mitigation Monitoring & Reporting Plan the meets the requirements of CEQA Section 21081.6 for mitigation measures included in the EIR. 5 copies of the Screencheck Draft EIR will be provided. Task 3 —Check Copy of Draft EIR - HAA will prepare a Check Copy of the Draft EIR that incorporates comments received during review of the Screencheck Draft EIR. It is anticipated that the Check Copy would be a final review prior to the Draft EIR being published for a 45 -day public review period. 5 copies of the Check Copy of the Draft EIR will be provided. Task 4 — Draft EIR — HAA will prepare a Draft EIR in compliance with CEQA and the CEQA Guidelines and Notice of Completion. HAA will prepare all notices and the distribution list for the Draft EIR. The Draft EIR will be subject to a 45 -day public review period. HAA will provide 40 copies of the Draft EIR (15 copies are to be submitted to the State Clearinghouse, Office of Planning & Research (OPR)). Page 3 of 5 • Task 5 — Response to Comments — HAA will prepare a draft of responses to all comments submitted to the City on the Draft EIR in compliance with CEQA Guidelines Section 15088. Comments that may be submitted regarding a technical topic (i.e. traffic, hydrology, etc.) will be provided to the technical consultant and /or City staff for assistance in preparing a response. Hodge & Associates will incorporate the technical responses into the Response to Comments document. The Response to Comments document will be distributed to all public agencies who comment on the Draft EIR at least 10 -days prior to anticipated City action on the EIR In compliance with CEQA (Public Resources Code) Section 21092.5. 10 copies of the Screencheck Response to Comments Document will be provided to the City. 20 copies of the Response to Comments Document will be provided for distribution. Task 6 — EIR Findings Statement of Overriding Considerations & Mitigation Monitoring & Reporting Plan — HAA will prepare draft EIR Findings for City Council certification of the EIR. HAA will also prepare a Statement of Overriding Considerations for the project if required (i.e. for any environmental impacts that can not be fully mitigated). Task 7 — Draft of Final EIR & Final EIR — HAA will prepare a draft of the Final EIR in compliance with CEQA Guidelines Section 15089. HAA will also prepare the Final EIR that incorporates review comments of the Draft Final EIR. 10 copies of the Final EIR will be provided by HAA. Task 8 - Public Notices — HAA will prepare all public notices required for the EIR in compliance with CEQA and the CEQA Guidelines. City staff will post, mail and publish all • public notices. HAA is available to provide any assistance to the City staff in regards to public noticing of the project to ensure the EIR schedule is met. Task 9 — Meetings & Public Hearings — HAA will attend meetings held with City staff during the preparation and processing of the EIR. HAA anticipates attending two (2) Planning Commission Hearings and one (1) City Council Hearing. Task 10 — Technical Studies — HAA proposes subcontracting for biological resources assessment and visual analysis technical services described below: Biological Resources - MBC Applied Environmental Sciences will prepare a biological resources assessment that will be incorporated in the EIR. The marine biological resources analysis will analyze existing conditions, potential impacts and recommended mitigation measures. Page 4 of 5 • Aesthetics — Focus 360 will prepare a visual analysis for the EIR. The visual analysis will include site survey, photography, and computer modeling and imaging from viewpoints. The three - dimensional computer model will indicate proposed topographic grading, parking and building. The imaging will illustrate building forms and landscape in scale, material and color. It is our understanding that technical studies (i.e. traffic and parking, Phase 1 Assessment, etc.) will be provided to the City and CEQA consultant for review and use in the preparation of the subject EIR. Additionally, previous prepared technical studies relative to the site and project (i.e. biological assessment, historical assessment, etc.) will also be utilized in the preparation of the EIR. Performance Schedule HAA is available to commence work on the project immediately upon written start work authorization from the City. It is anticipated that the EIR preparation and processing can be completed (City Council action on project EIR) in six (6) months or less. A detailed CEQA processing schedule will be provided to the City upon authorization to proceed. Cost Proposal The table on the following page summarizes the cost proposal for tasks identified previously in this proposal under Scope of Work. The cost proposal identifies a total not to exceed budget of $73,059.89 for environmental consultant services. • Insurance Coverage Hodge & Associates maintains current insurance coverage (i.e. General Liability, Professional Liability — Errors & Omissions, and Automobile Coverage etc.) that meets the requirements of the City of Newport Beach. Conclusion Thank you in advance for your consideration of our proposal. We are available to meet with the Planning Department if you should have any questions and /or would like to discuss our proposal. We can be reached at our office (949) 661 -6488 or cellular (714) 329 -3838. Sincerely, Cheryle L. Hodge, President HODGE & ASSOCIATES Page 5 of 5 Hodge & Associates South Coast Shipyard & Design EIR Cost Proposal Deliverables: Screencheck IS/NOP — 5 copies Publish & Mail IS/NOP — 30 copies Screencheck Draft EIR— 10 copies Check Copy of Draft EIR — 5 copies Publish & Mail Draft EIR — 40 copies Screencheck Response to Comments — 10 copies Publish & Mail Response to Comments — 20 copies Draft Final EIR & Final EIR — 10 copies * Task also includes consultant coordination relative to preparation of technical studies 0 OR • Task Description Cost 1. IS/NOP $5,800.00 2. Screencheck Draft EIR* $30,525.00 3. Check Copy Draft EIR $3,400.00 4. Draft EIR $2,125.00 5. Response to Comments $3,500.00 6. CEQA Findings $ 500.00 7. Final EIR (including draft of Final EIR) $1,275.00 8. Prep of all public notices for EIR process $ 300.00 9. Meetings/Hearings $1,000.00 10. Reimbursable (i.e. printing, postage, mileage) $9,400.00 11. Technical Studies $15,234.89 Focus 360 (Visual Sims) = $8,460.00 Marine Biology Report = $6,774.89 TOTAL NOT TO EXCEED BUDGET $73,059.89 Deliverables: Screencheck IS/NOP — 5 copies Publish & Mail IS/NOP — 30 copies Screencheck Draft EIR— 10 copies Check Copy of Draft EIR — 5 copies Publish & Mail Draft EIR — 40 copies Screencheck Response to Comments — 10 copies Publish & Mail Response to Comments — 20 copies Draft Final EIR & Final EIR — 10 copies * Task also includes consultant coordination relative to preparation of technical studies 0 OR • HODGE & ASSOCIATES SCHEDULE OF FEES & GENERAL CONDITIONS 2003 Billing rates are subject to revision effective January 1 of each year Staff Hourly Rates William Hodge $120.00 Cheryle Hodge $ 90.00 Graphics $ 45.00 Clerical $ 35.00 GENERAL CONDITIONS 1. Hourly rates apply to work time as well as travel time which occur at public hearings and scheduled meetings. Travel, reproduction and supplies outside of a scope of work are billed at cost. Auto mileage will be billed at $0.36 cents per mile. 2. Billing invoices will be submitted monthly for work in progress or upon completion of work. All invoices are payable within thirty (30) days of the invoice date. Any invoice unpaid after thirty (30) days will be subject to interest allowable by State law. If client fails to pay consultant within sixty (60) days after invoice is rendered, client agrees consultant shall have the right to consider such default in payment a material breach of their entire agreement, and, upon written notice, the duties, obligations, and responsibilities of consultant under this agreement are suspended. • 3. Client hereby agrees that the balance in a billing invoice is correct and binding unless the client notifies the consultant in writing within ten (10) days of the date of the billing and informs consultant of alleged incorrect billing. 4. Consultant makes no warranty as to his/her finding, except that the work is performed using generally accepted methods. Consultant makes no warranty that the project will be approved by any governmental agency, nor endorsed by any citizens group. 5. All documents produced as a result of this agreement shall remain the property of the consultant and may not be used by the client without consent from the consultant unless they become part of the public record. 6. The client agrees to limit the consultant's liability to the client, because of professional negligent acts, errors, or omissions by the consultant, to the consultant's fee. 7. Any controversy or claim arising out of or relating to this contract or the breach thereof shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgement upon the award rendered by the arbitration may be entered in any court having jurisdiction thereof. In the event either party commences legal action to enforce this Agreement of the General Conditions, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs incurred in the action, in addition to all other relief to which the prevailing party is entitled. 8. In the event of a mid -phase contract suspension, billings will be prorated to reflect tasks in progress, except where a task was completed early, in which case it will be billed as if the task were complete. Page 1 of 1