CITY OF COSTA MESA
REGULAR CITY COUNCIL AND SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND HOUSING AUTHORITY*
Agenda
City Council Chambers
77 Fair Drive
6:00 PMTuesday, January 16, 2024
*Note: All agency memberships are reflected in the title "Council Member" 4:00 P.M. Closed Session
The City Council meetings are presented in a hybrid format, both in-person at City Hall and as a courtesy virtually via Zoom Webinar. If the Zoom feature is having system outages or experiencing other critical issues, the meeting will continue in person.
TRANSLATION SERVICES AVAILABLE / SERVICIOS DE TRADUCCIÓN DISPONIBLE Please contact the City Clerk at (714) 754-5225 to request language interpreting services for City meetings. Notification at least 48 hours prior to the meeting will enable the City to make arrangements.
Favor de comunicarse con la Secretaria Municipal al (714) 754-5225 para solicitar servicios de interpretación de idioma para las juntas de la Ciudad. Se pide notificación por lo mínimo 48 horas de anticipación, esto permite que la Ciudad haga los arreglos necesarios.
Members of the public can view the City Council meetings live on COSTA MESA TV (SPECTRUM CHANNEL 3 AND AT&T U-VERSE CHANNEL 99) or
http://costamesa.granicus.com/player/camera/2?publish_id=10&redirect=true and online at youtube.com/costamesatv.
1 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
Zoom Webinar: (For both 4:00 p.m. and 6:00 p.m. meetings) Please click the link below to join the webinar:
https://us06web.zoom.us/j/98376390419?pwd=dnpFelc5TnU4a3BKWVIyRVZMallZZz09 Or sign into Zoom.com and “Join a Meeting”
Enter Webinar ID: 983 7639 0419/ Password: 905283
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Participate via telephone: (For both 4:00 p.m. and 6:00 p.m. meetings) Call: 1 669 900 6833 Enter Webinar ID: 983 7639 0419/ Password: 905283 During the Public Comment Period, press *9 to add yourself to the queue and wait for city staff to announce your name/phone number and press *6 to unmute your line when it is your turn to speak. Comments are limited to 3 minutes, or as otherwise directed.
Note, if you have installed a zoom update, please restart your computer before participating in the meeting.
Additionally, members of the public who wish to make a written comment on a specific agenda item, may submit a written comment via email to the City Clerk at [email protected].
Comments received by 12:00 p.m. on the date of the meeting will be provided to the City Council, made available to the public, and will be part of the meeting record.
Please know that it is important for the City to allow public participation at this meeting. If you are unable to participate in the meeting via the processes set forth above, please contact the City Clerk at (714) 754-5225 or [email protected] and staff will attempt to accommodate you. While the City does not expect there to be any changes to the above process for participating in this meeting, if there is a change, the City will post the information as soon as possible to the City’s website.
2 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
Note that records submitted by the public will not be redacted in any way and will be posted online as submitted, including any personal contact information. All pictures, PowerPoints, and videos submitted for display at a public meeting must be previously reviewed by staff to verify appropriateness for general audiences. No links to YouTube videos or other streaming services will be accepted, a direct video file will need to be emailed to staff prior to each meeting in order to minimize complications and to play the video without delay. The video must be one of the following formats, .mp4, .mov or .wmv. Only one file may be included per speaker for public comments, for both videos and pictures. Please e-mail to the City Clerk at [email protected] NO LATER THAN 12:00 Noon on the date of the meeting. If you do not receive confirmation from the city prior to the meeting, please call the City Clerks office at 714-754-5225.
Note regarding agenda-related documents provided to a majority of the City Council after distribution of the City Council agenda packet (GC §54957.5): Any related documents provided to a majority of the City Council after distribution of the City Council Agenda Packets will be made available for public inspection. Such documents will be posted on the city’s website and will be available at the City Clerk's office, 77 Fair Drive, Costa Mesa, CA 92626.
All cell phones and other electronic devices are to be turned off or set to vibrate. Members of the audience are requested to step outside the Council Chambers to conduct a phone conversation.
Free Wi-Fi is available in the Council Chambers during the meetings. The network username available is: CM_Council. The password is: cmcouncil1953.
As a LEED Gold Certified City, Costa Mesa is fully committed to environmental sustainability.
A minimum number of hard copies of the agenda will be available in the Council Chambers.
For your convenience, a binder of the entire agenda packet will be at the table in the foyer of the Council Chambers for viewing. Agendas and reports can be viewed on the City website at https://costamesa.legistar.com/Calendar.aspx.
In compliance with the Americans with Disabilities Act, Assistive Listening headphones are available and can be checked out from the City Clerk. If you need special assistance to participate in this meeting, please contact the City Clerk at (714) 754-5225. Notification at least 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR 35.102.35.104 ADA Title II].
En conformidad con la Ley de Estadounidenses con Discapacidades (ADA), aparatos de asistencia están disponibles y podrán ser prestados notificando a la Secretaria Municipal. Si necesita asistencia especial para participar en esta junta, comuníquese con la oficina de la Secretaria Municipal al (714) 754-5225. Se pide dar notificación a la Ciudad por lo mínimo 48 horas de anticipación para garantizar accesibilidad razonable a la junta. [28 CFR
35.102.35.104 ADA Title II].
3 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
CLOSED SESSION - 4:00 P.M.
CALL TO ORDER
ROLL CALL
PUBLIC COMMENTS Members of the public are welcome to address the City Council only on those items on the Closed Session agenda. Each member of the public will be given a total of three minutes to speak on all items on the Closed Session agenda.
CLOSED SESSION ITEMS:
1. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to California Government Code Section 54957.6 (a) Agency Designated Representative: Lori Ann Farrell Harrison, City Manager and Alma Reyes, Deputy City Manager
Name of Employee Organization: Costa Mesa Firefighters Association (CMFA).
2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION – ONE CASE Pursuant to California Government Code Section 54956.9 (d)(1) Name of Case: City of Costa Mesa; People of State of Cal. v. D'Alessio Investments LLC, et al.
440 Fair Dr. and 1779 Newport Blvd.
Orange County Superior Court Case No. 30-2020-01170520
3. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION – ONE CASE Pursuant to California Government Code Section 54956.9 (d)(1) Name of Case: D'Alessio Investments LLC v. City of Costa Mesa Orange County Superior Court Case No. 30-2020-01132646
4. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION – ONE CASE Pursuant to California Government Code Section 54956.9 (d)(1) Name of Case: City of Costa Mesa v. D’Alessio; 1936 Wallace Ave.
Orange County Superior Court Case No. 30-2020-01133479
4 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
REGULAR MEETING OF THE CITY COUNCIL AND SUCCESSOR AGENCY
TO THE REDEVELOPMENT AGENCY, AND HOUSING AUTHORITY
JANUARY 16, 2024 – 6:00 P.M.
JOHN STEPHENS
Mayor
JEFFREY HARLAN ANDREA MARR Mayor Pro Tem - District 6 Council Member - District 3
MANUEL CHAVEZ LOREN GAMEROS
Council Member - District 4 Council Member - District 2
ARLIS REYNOLDS DON HARPER
Council Member - District 5 Council Member - District 1
KIMBERLY HALL BARLOW LORI ANN FARRELL HARRISON
City Attorney City Manager
CALL TO ORDER
NATIONAL ANTHEM AND PLEDGE OF ALLEGIANCE
MOMENT OF SOLEMN EXPRESSION
[Per Council Policy 000-12, these presentations are made by community volunteers stating their own views. The City Council disclaims any intent to endorse or sponsor the views of any speaker.]
ROLL CALL
CITY ATTORNEY CLOSED SESSION REPORT
PRESENTATIONS:
1. Recognition of Police Service Dog Bodi's Retirement
2. Employee Recognition
5 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
PUBLIC COMMENTS – MATTERS NOT LISTED ON THE AGENDA
Comments on Consent Calendar items may also be heard at this time.
Comments are limited to 3 minutes, or as otherwise directed.
COUNCIL MEMBER COMMITTEE REPORTS, COMMENTS, AND SUGGESTIONS Each council member is limited to 3 minutes. Additional comments will be heard at the end of the meeting.
1. Council Member Gameros
2. Council Member Harper
3. Council Member Marr
4. Council Member Reynolds
5. Council Member Chavez
6. Mayor Pro Tem Harlan
7. Mayor Stephens
REPORT – CITY MANAGER
REPORT – CITY ATTORNEY
CONSENT CALENDAR
All matters listed under the Consent Calendar are considered to be routine and will be acted upon in one motion. There will be no separate discussion of these items unless members of the City Council, staff, or the public request specific items to be discussed and/or removed from the Consent Calendar for discussion.
1. PROCEDURAL WAIVER: WAIVE THE FULL READING OF ALL
ORDINANCES AND RESOLUTIONS
24-021
RECOMMENDATION:
City Council, Agency Board, and Housing Authority approve the reading by title only and waive full reading of Ordinances and Resolutions.
6 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
2. READING FOLDER 24-022
RECOMMENDATION:
City Council receive and file Claims received by the City Clerk: George Abrina, Forrest Ascarrunz, Teresa Beck, Noreen Becker, Bryan Bennani, Automobile Club as Subrogee of Bryan Bennani, Andrea Grigsby, Amelia Salehpour, Antonio Urresti.
3. ADOPTION OF WARRANT RESOLUTION 24-020
RECOMMENDATION:
City Council approve Warrant Resolution No. 2710.
1. Summary Check Register 11-30-2023
2. Summary Check Register 12-07-2023
3. Summary Check Register 12-21-2023
4. Summary Check Register 12-28-2023
Attachments:
4. MINUTES 24-023
RECOMMENDATION:
City Council approve the minutes of the regular meeting of December 5, 2023 and the Study Session meeting of December 12, 2023.
1. 12-05-2023 Draft Minutes
2. 12-12-2023 Draft Minutes
Attachments:
5. REVIEW AND APPROVE RECOMMENDED CITY COUNCIL MEETING
CALENDAR FOR 2024
24-008
RECOMMENDATION:
Review and approve recommended City Council Meeting Calendar for 2024 and cancel the Tuesday, November 5, 2024, City Council Meeting due to Election Day.
6. APPROVAL OF MAYOR ’S APPOINTMENTS TO THE
TRANSPORTATION CORRIDOR AGENCIES
24-024
RECOMMENDATION:
Staff recommends the City Council approve the following Mayor’s appointments:
1. Transportation Corridor Agencies (TCA): Appointee - Mayor John Stephens and Alternate - Councilmember Arlis Reynolds.
7 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
7. SECOND READING AND ADOPTION OF ORDINANCE NO. 2024-01 AMENDING TITLE 13 (PLANNING, ZONING, AND DEVELOPMENT)
OF THE COSTA MESA MUNICIPAL CODE TO MODIFY THE CITY ’S
OUTDOOR DINING PROVISIONS (CODE AMENDMENT
PCTY-23-0002)
24-003
RECOMMENDATION:
Staff recommends the Council give second reading to and adopt Ordinance No . 2024-01 approving Code Amendment PCTY- 23-0002, amending Title 13 (Planning, Zoning, and Development) of the Costa Mesa Municipal Code to modify the City’s Outdoor Dining provisions.
Agenda Report
1. Draft Ordinance
2. Exhibit A to the Ordinance
Attachments:
8. AUTHORIZATION FOR THE RETIREMENT OF POLICE SERVICE
DOG BODI AND THE SALE OF POLICE SERVICE DOG BODI TO
OFFICER GEORGE MARIDAKIS
24-009
RECOMMENDATION:
Staff recommends the City Council:
1. Approve the retirement of Police Service Dog Bodi after five years of outstanding service to the community.
2. Authorize the City Manager or designee to execute the purchase agreement for the sale of Police Service Dog Bodi to Officer George Maridakis.
1. Bodi Retirement Purchase AgreementAttachments:
8 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
9. AUTHORIZATION FOR THE PROCUREMENT OF DATA ANALYTICS
SOFTWARE WITH PEREGRINE
24-010
RECOMMENDATION:
Staff recommends the City Council:
1. Approve the purchase of data analytics software based on pricing provided through a cooperative agreement with the City of Fremont, No.21-0113.
2. Authorize the purchase of data analytics software under the awarded Organized Retail Theft Prevention Grant (ORT) with Peregrine Technologies in the amount of $315,000.
3. Authorize the City Manager and City Clerk to execute an agreement with Peregrine Technologies in a form approved by the City Attorney.
1. Peregrine Order Form Terms and ConditionsAttachments:
10. PROFESSIONAL ARCHITECTURAL AND ENGINEERING SERVICES
FOR THE SHALIMAR PARK EXPANSION PROJECT
23-1487
RECOMMENDATION:
Staff recommends the City Council:
1. Award a Professional Services Agreement (PSA) to Community Works Design Group, Inc., 7111 Indiana Avenue, Suite 300, Riverside, California in an amount not to exceed $158,970 for the design of improvements and expansion of Shalimar Park.
2. Authorize an additional ten percent (10%) contingency in the amount of $15,897 as needed for any unforeseen costs related to this project.
3. Authorize the City Manager and the City Clerk to execute the PSA and any future amendments to the agreement within Council authorized limits.
1. Conceptual Renderings
2. PSA
Attachments:
9 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
11. PROFESSIONAL ARCHITECTURAL AND ENGINEERING SERVICES
FOR THE KETCHUM-LIBOLT PARK EXPANSION PROJECT
23-1488
RECOMMENDATION:
Staff recommends the City Council:
1. Award a Professional Services Agreement (PSA) to Architerra Design Group, Inc., 10221-A Trademark Street, Rancho Cucamonga, California in an amount not to exceed $193,098 for the design of improvements and expansion of Ketchum-Libolt Park located at 2150 Maple Street, Costa Mesa.
2. Authorize an additional ten percent (10%) contingency in the amount of $19,310 as needed for any unforeseen costs related to this project.
3. Authorize the City Manager and the City Clerk to execute the PSA and any future amendments to the agreement within Council authorized limits.
1. Conceptual Renderings
2. PSA
Attachments:
10 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
12. AWARD OF THE LED LIGHTING INSTALLATION AT CITY PARKS AND ATHLETIC FACILITIES PROJECT, CITY PROJECT NO. 23-09 24-005
RECOMMENDATION:
Staff recommends the City Council:
1. Adopt plans, specifications, and working details for the LED Lighting Installation at City Parks and Athletic Facilities Project, City Project No. 23-
09. 2. Authorize the City Manager and City Clerk to execute a Public Works Agreement (PWA) in the amount of $759,700, and future contract amendments within City Council authorized limits to RMF Contracting, Inc ., 1523 North Harmony Circle, Anaheim, California 92807.
3. Authorize a ten percent (10%) contingency in the amount of $75,970 for unforeseen construction and miscellaneous costs related to the project.
ENVIRONMENTAL DETERMINATION:
The proposed action is exempt from the California Environmental Quality Act (CEQA). The action involves an organizational or administrative activity of government that will not result in the direct or indirect physical change in the environment. In addition, the proposed action is exempt under Section 15301 relating to the operation, repair, maintenance, permitting, and /or minor alteration of existing public facilities.
1. Bid Abstract
2. Public Works Agreement (PWA)
Attachments:
11 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
13. ACCEPTANCE OF THE JACK HAMMETT SPORTS COMPLEX
EXPANSION PROJECT, CITY PROJECT NO. 21-05
24-007
RECOMMENDATION:
Staff recommends the City Council:
1. Accept the work performed by Horizons Construction Company International, Inc., 432 West Meats Avenue, Orange, California 92865, for the Jack Hammett Sports Complex Expansion Project, City Project No. 21-05, and authorize the City Clerk to file the Notice of Completion.
2. Authorize the City Manager to release the Labor and Material Bond seven ( 7) months after the filing date and release the Faithful Performance Bond at the conclusion of the one-year warranty period. Retention monies have been released pursuant to Public Contract Code 7107(c).
1. Final CostsAttachments:
14. CLEAN MOBILITY OPTIONS PILOT PROGRAM AND OCTA PROJECT
V GRANT FOR COMMUNITY BASED TRANSIT
24-013
RECOMMENDATION:
Staff recommends the City Council:
1. Adopt the proposed Resolution No. 2024-xx, approving participation in the Clean Mobility Options Voucher Pilot Program.
2. Adopt the proposed Resolution No. 2024-xx, approving the submittal of a grant application for the Community-Based Transit /Circulators Program (Project V) under the Orange County Transportation Authority ’s (OCTA ’s) Comprehensive Transportation Funding Program (CTFP).
1. CMO Voucher Resolution
2. OCTA Resolution
Attachments:
AT THIS TIME COUNCIL WILL ADDRESS ANY ITEMS PULLED FROM THE CONSENT
CALENDAR
------------------------------END OF CONSENT CALENDAR-------------------------------
12 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
PUBLIC HEARINGS:
(Pursuant to Resolution No. 05-55, Public Hearings begin at 7:00 p.m.)
1. REVIEW OF THE PLANNING COMMISSION ’S DECISION TO DENY PLANNING APPLICATION 22-45 FOR A NEW PUBLIC CHARTER
HIGH SCHOOL ( “VISTA MERIDIAN GLOBAL ACADEMY ”) AND A
MINOR CONDITIONAL USE PERMIT FOR SMALL CAR PARKING
LOCATED AT 1620 SUNFLOWER AVENUE
24-001
RECOMMENDATION:
Staff recommends that the City Council review the Planning Commission ’s decision to deny Planning Application 22-45.
Agenda Report
1. Resolution for Approval
2. Resolution for Denial
3. Filed Review Application
4. Planning Commission Resolution
5. Planning Commission approved minutes
6. Planning Commission Public Comments
7. Applicant Communications
Attachments:
13 REGULAR CITY COUNCIL AND
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND
HOUSING AUTHORITY*
Agenda January 16, 2024
2. AN ORDINANCE AMENDING TITLE 13 (PLANNING, ZONING AND
DEVELOPMENT) OF THE COSTA MESA MUNICIPAL CODE TO
ESTABLISH AFFORDABLE HOUSING REQUIREMENTS FOR NEW
RESIDENTIAL DEVELOPMENT PROJECTS
24-011
RECOMMENDATION:
Staff recommends the City Council:
1. Find that the adoption of Ordinance No. 2024-XX is exempt from the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15061(b)(3), General Rule in that the affordable housing ordinance will not have a significant impact on the environment.
2. Give first reading to Ordinance No. 2024-XX (PCTY-23-0001) modifying Title 13 (Planning, Zoning, and Development) of the Costa Mesa Municipal Code (CMMC) to establish affordable housing requirements for new residential developments.
Agenda Report
1. Draft Ordinance
2. Strikethrough Exhibit A
3. OC Comparison Table
4. Affordable Housing Requirements
5. Corridor Areas Map
Attachments:
OLD BUSINESS: NONE.
NEW BUSINESS: NONE.
ADDITIONAL COUNCIL /BOARD MEMBER COMMITTEE REPORTS, COMMENTS, AND
SUGGESTIONS
ADJOURNMENT
14 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 24-021 Meeting Date: 1/16/2024
TITLE:
PROCEDURAL WAIVER: WAIVE THE FULL READING OF ALL ORDINANCES AND
RESOLUTIONS
RECOMMENDATION:
City Council, Agency Board, and Housing Authority approve the reading by title only and waive full reading of Ordinances and Resolutions.
15 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 24-022 Meeting Date: 1/16/2024
TITLE:
READING FOLDER
DEPARTMENT: City Manager’s Office/City Clerk’s Division RECOMMENDATION:
City Council receive and file Claims received by the City Clerk: George Abrina, Forrest Ascarrunz, Teresa Beck, Noreen Becker, Bryan Bennani, Automobile Club as Subrogee of Bryan Bennani, Andrea Grigsby, Amelia Salehpour, Antonio Urresti.
16 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 24-020 Meeting Date: 1/16/2024
TITLE:
ADOPTION OF WARRANT RESOLUTION
DEPARTMENT: Finance Department
PRESENTED BY: Carol Molina, Finance Director
CONTACT INFORMATION: Carol Molina at (714) 754-5243
RECOMMENDATION:
City Council approve Warrant Resolution No. 2710.
BACKGROUND:
In accordance with Section 37202 of the California Government Code, the Director of Finance or their designated representative hereby certify to the accuracy of the following demands and to the availability of funds for payment thereof.
FISCAL REVIEW:
Funding Payroll Register No. 23-25 for $3,712,206.52; and City operating expenses for $4,489,889.69.
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CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 24-023 Meeting Date: 1/16/2024
TITLE:
MINUTES
DEPARTMENT: City Manager’s Office/City Clerk’s Division RECOMMENDATION:
City Council approve the minutes of the regular meeting of December 5, 2023 and the Study Session meeting of December 12, 2023.
73 Minutes – Regular Meeting – December 5, 2023 Page 1 of 11
REGULAR CITY COUNCIL AND SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND HOUSING AUTHORITY
DECEMBER 5, 2023 – MINUTES
CALL TO ORDER – The Closed Session meeting was called to order by Mayor Stephens at 4:00 p.m.
ROLL CALL
Present: Council Member Chavez, Council Member Gameros (Arrived 4:04 p.m.), Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.
Absent: Council Member Harper.
Ms. Hall Barlow, City Attorney requested two additional closed session items be added to the agenda, regarding litigation that was brought to the attention of the City after the agenda had been posted and needed to be considered prior to the next regularly scheduled meeting.
1. CONFERENCE WITH REAL PROPERTY NEGOTIATOR
Pursuant to California Government Code Section 54956.8
APN: 420-012-16
Agency Negotiators: Lori Ann Farrell Harrison, City Manager Negotiating Parties: State of California
Under Negotiation: Price and Terms of Payment
2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION – ONE CASE Pursuant to California Government Code Section 54956.9 (d)(1) Name of Case: Tippett v. City of Costa Mesa
Orange County Superior Court Case No. 30-2022-01243684-CU-PO-NJC.
MOVED/SECOND: Mayor Stephens/Mayor Pro Tem Harlan
MOTION: Add the two Closed Session items as requested by Ms. Hall Barlow, City Attorney.
The motion carried by the following roll call vote:
Ayes: Council Member Chavez, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.
Nays: None
Absent: Council Member Gameros and Council Member Harper.
Abstain: None
Motion carried: 5-0
PUBLIC COMMENTS – NONE.
74 Minutes – Regular Meeting – December 5, 2023 Page 2 of 11 CLOSED SESSION ITEMS:
1. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATION OF LITIGATION - SIX CASES
Pursuant to California Government Code Section 54956.9 (d)(2), Potential Litigation.
2. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION – ONE CASE Pursuant to California Government Code Section 54956.9 (d)(1) Name of Case: DBO Investments CM, LLC, a California Liability Company v. City of Costa Mesa
Orange County Superior Court Case No. 30-2023-01360125-CU-CR-NJC.
3. CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to California Government Code Section 54957.6 (a) Agency Designated Representative: Lori Ann Farrell Harrison, City Manager and Alma Reyes, Deputy City Manager
Name of Employee Organization: Costa Mesa Firefighters Association (CMFA).
4. CONFERENCE WITH REAL PROPERTY NEGOTIATOR
Pursuant to California Government Code Section 54956.8
APN: 420-012-16
Agency Negotiators: Lori Ann Farrell Harrison, City Manager Negotiating Parties: State of California
Under Negotiation: Price and Terms of Payment
5. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION – ONE CASE Pursuant to California Government Code Section 54956.9 (d)(1) Name of Case: Tippett v. City of Costa Mesa
Orange County Superior Court Case No. 30-2022-01243684-CU-PO-NJC.
City Council recessed at 4:04 p.m. for Closed Session.
Closed Session recessed at 5:51 p.m. for Open Session.
Closed Session resumed at 9:07 p.m.
Closed Session adjourned at 9:48 p.m.
CALL TO ORDER – The Regular City Council and Successor Agency to the Redevelopment Agency, and Housing Authority meeting was called to order by Mayor Stephens at 6:01 p.m.
NATIONAL ANTHEM AND PLEDGE OF ALLEGIANCE
A video was played of the National Anthem and Mayor Stephens led the Pledge of Allegiance.
MOMENT OF SOLEMN EXPRESSION – Led by Pastor Dave Manne, Calvary Chapel. 75 Minutes – Regular Meeting – December 5, 2023 Page 3 of 11
ROLL CALL
Present: Council Member Chavez, Council Member Gameros, Council Member Marr Council Member Reynolds, Mayor Pro Tem Harlan and Mayor Stephens.
Absent: Council Member Harper.
The Mayor announced the reordering of the Public Hearing agenda to consider Public Hearing item No. 2 prior to Public Hearing item No. 1.
CITY ATTORNEY CLOSED SESSION REPORT – No reportable action.
PRESENTATIONS:
The Mayor recognized the Newport Mesa Pop Warner Patriots 12U.
The Mayor recognized the South Coast Repertory's 60 Seasons.
PUBLIC COMMENTS – MATTERS NOT LISTED ON THE AGENDA
Lydia Chavez, representing Supervisor Foley, spoke on priorities, public safety, homelessness, climate resiliency planning, supporting small businesses, advocating for preservation of the equestrian center at the Fairgrounds, and spoke on the coat drive, Jay Humphrey, Costa Mesa, wished all a happy holiday season.
Speaker, spoke on a letter from the California Department of Housing and Community Development to the City regarding the Housing Element, and requested an update on sober living homes litigation.
Speaker, thanked the City Council for adopting the Tenant Protection Act, and spoke on receiving an eviction notice and problems with the landlord.
Juana Trejo, thanked the City Council for adopting the Tenant Protection Act, spoke on safety in the community.
Ida Wolf, Costa Mesa, requested a new ice machine and blinds at the Senior Center.
Carmen Ramirez, Costa Mesa, thanked the City Council for adopting the Tenant Protection Act, and spoke on families being evicted that need assistance.
Speaker, wished all a happy holiday season, spoke on the value of local government, spoke on AB 413 regarding parking and crosswalks, spoke on updating the codes, and spoke on traffic improvements.
Speaker, requested additional police presence in their neighborhoods and Spanish interpreters at the Communications Center.
76 Minutes – Regular Meeting – December 5, 2023 Page 4 of 11 Speaker, thanked the City Council for adopting the Tenant Protection Act, spoke on receiving an eviction notice, and spoke on problems with the landlord.
Speaker spoke on safety in the neighborhoods.
Speaker, spoke against the West 19th Street and Monrovia Street improvements.
Hank Castignetti, Orange County Model Engineers, spoke on the North Pole Express, and Santa Claus is Coming to the railroad on December 16th and 17th.
Becca Walls, member of the Animal Services Committee, requested an update on the Animal Services Contract.
Speaker, spoke on preserving Fairview Park, and spoke against the Harbor Soaring Society.
Cynthia McDonald, Costa Mesa, spoke on the recognition of South Coast Repertory, spoke on the December 12 th Study Session and requested an advisory committee for the Fairview Developmental Center.
COUNCIL MEMBER COMMITTEE REPORTS, COMMENTS, AND SUGGESTIONS Council Member Chavez requested the blinds and ice machine be addressed at the senior center, spoke on the Costa Mesa 311 App, requested lights in alley ways, spoke on Chat with the Chief on Thursday, December 7 th, invited everyone to Snoopy House, and spoke on CalOptima allowing undocumented residents to obtain Medicare and Medicaid.
Council Member Gameros wished everyone Happy Holidays, and thanked the Police and Fire Departments for their service.
Council Member Marr spoke on involvement with local government and public education on street calming measures.
Council Member Reynolds spoke on public participation and education on pedestrian safety, spoke on Labors of Love service projects on the first Saturday of every month, spoke on the Mobile Home Advisory Committee meeting, spoke on the Active Transportation Committee and the Pedestrian Master Plan, spoke on attending the holiday lunch with Human Options, complimented the Planning Division staff, and requested lights on the Joann St. trail.
Mayor Pro Tem Harlan spoke on Harper Park, spoke on the Northgate Market opening, spoke on the Segerstrom Tree Lighting Ceremony, spoke on Supervisor Foley’s Food Drive, and spoke on the unrest in Israel and hostages, wished everyone a Merry Christmas, Happy Hanukkah, and Kwanza.
Mayor Stephens spoke on the Northgate Market opening, spoke on street improvements and traffic calming measures, spoke on Fairview Developmental Center and the proposed Emergency Operations Center, and spoke on adjourning the meeting in honor of Coach Hicks. 77 Minutes – Regular Meeting – December 5, 2023 Page 5 of 11 REPORT – CITY MANAGER – Ms. Farrell Harrison spoke on the December 12, 2023 Study Session on housing, Snoopy House, Costa Mesa Fire and Rescue Annual Toy Drive, City Hall closure Friday, December 22 nd - January 1 st, and Ms. Molina, Finance Director provided an update on the animal services contract.
REPORT – CITY ATTORNEY – NONE.
CONSENT CALENDAR
MOVED/SECOND: Council Member Marr/Council Member Chavez MOTION: Approve the Consent Calendar except for Item No. 11.
The motion carried by the following roll call vote:
Ayes: Council Member Chavez, Council Member Gameros, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.
Nays: None
Absent: Council Member Harper.
Abstain: None.
Motion carried: 6-0
1. PROCEDURAL WAIVER: WAIVE THE FULL READING OF ALL ORDINANCES AND
RESOLUTIONS
ACTION:
City Council, Agency Board, and Housing Authority approved the reading by title only and waived full reading of Ordinances and Resolutions.
2. READING FOLDER
ACTION:
City Council received and filed Claims received by the City Clerk: Jose Israel Gonzalez De La Cruz, Se7enLeaf LLC.
3. ADOPTION OF WARRANT RESOLUTION
ACTION:
City Council approved Warrant Resolution No. 2709.
4. MINUTES
ACTION:
City Council approved the minutes of the regular meeting of November 7, 2023.
5. REQUEST TO CANCEL THE REGULAR CITY COUNCIL MEETING OF JANUARY 2, 2024
ACTION:
City Council canceled the regular meeting of Tuesday, January 2, 2024. 78 Minutes – Regular Meeting – December 5, 2023 Page 6 of 11
6. APPROVAL FOR THE PURCHASE AND REPLACEMENT OF SECURITY VIDEO
CAMERAS FOR THE POLICE DEPARTMENT
ACTION:
1. City Council authorized the use of OMNIA Partners Cooperative Agreement No.
R220804 with SHI International Corp. for the purchase of Verkada Camera System in the amount of $259,114.24.
2. Authorized a 5% contingency of $12,955.71 for unforeseen costs.
3. Authorized the City Manager or designee to execute the necessary documents to purchase Verkada Camera System.
7. AMENDMENTS TO THE INTEGRATED LAW & JUSTICE AGENCY FOR ORANGE
COUNTY (ILJAOC) JOINT POWERS AGREEMENT
ACTION:
City Council reviewed and approved the amendments to the Joint Powers Agreement for further review and approval by the Member Agencies.
8. ACCEPTANCE OF THE 2022, 2023 AND 2024 EMERGENCY MANAGEMENT
PERFORMANCE GRANT
ACTION:
1. City Council approved the Agreement to Transfer Funds for the 2022 Emergency Management Performance Grant Program (EMPG) (the “Agreement”) and authorized the City Manager to execute the agreement.
2. Adopted Resolution No. 2023-54 which authorizes the application for and acceptance of funds under the EMPG Program for Years 2022, 2023, and 2024 and authorizes the City Manager, or designee, to take all action necessary to obtain the funding.
3. Approved revenue and expense appropriations in the amount of $16,366 respectively, for the 2022 EMPG Program.
9. MEASURE M2 EXPENDITURE REPORT
ACTION:
City Council adopted Resolution No. 2023-55, approving the Measure M2 Expenditure Report and authorizing staff to submit the report to the Orange County Transportation Authority (OCTA.)
79 Minutes – Regular Meeting – December 5, 2023 Page 7 of 11
10. AWARD OF THE CONNECTOR PIPE SCREEN INSTALLATION PROJECT, PHASE IV, CITY PROJECT NO. 23-08 AND DETERMINATION THAT THE PROJECT IS
CATEGORICALLY EXEMPT FROM CEQA
ACTION:
1. City Council found the project categorically exempt from CEQA and adopted plans, specifications, and working details for the Connector Pipe Screen Installation Project, Phase IV, City Project No. 23-08.
2. Authorized the City Manager and City Clerk to execute a Public Works Agreement (PWA) in the amount of $283,500, and future contract amendments within City Council authorized limits to United Storm Water, Inc., 1400 E. Valley Boulevard, Industry, California 91746.
3. Authorized a ten percent (10%) contingency in the amount of $28,350 for unforeseen construction and miscellaneous costs related to the project.
4. Authorized a budget appropriation from available fund balances from drainage fund in the amount of $55,967.
ITEMS PULLED FROM THE CONSENT CALENDAR
11. OPEN SPACE EASEMENT DEED AND AGREEMENT (“RAIL TRAIL”) WITH THE
PRESS OWNER, LLC
Public Comments:
Cynthia McDonald spoke in favor of the item and requested clarification on the hours of operation.
MOVED/SECOND: Council Member Reynolds/Mayor Pro Tem Harlan MOTION: Approve staff recommendation with the clarification of the trail hours of operation are from dawn to sunset or 6:00 p.m. whichever is later.
The motion carried by the following roll call vote:
Ayes: Council Member Chavez, Council Member Gameros, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.
Nays: None
Absent: Council Member Harper.
Abstain: None.
Motion carried: 6-0
ACTION:
1. City Council approved the Open Space Easement Deed and Easement Agreement (“Rail Trail”) between the City of Costa Mesa (City) and The Press Owner, LLC (Press LLC).
2. Authorized the City Manager or designee to execute the Open Space Easement Deed and Easement Agreement and any future authorized amendments to this agreement.
80 Minutes – Regular Meeting – December 5, 2023 Page 8 of 11 ---------------------------------------END OF CONSENT CALENDAR-------------------------------------- PUBLIC HEARINGS:
(Pursuant to Resolution No. 05-55, Public Hearings begin at 7:00 p.m.)
2. FIRST READING OF AN ORDINANCE TO AMEND TITLE 13 (PLANNING, ZONING,
AND DEVELOPMENT) OF THE COSTA MESA MUNICIPAL CODE TO MODIFY THE CITY’S OUTDOOR DINING PROVISIONS (CODE AMENDMENT PCTY-23-0002) Presentation by Ms. Curley, Assistant Planner.
Public Comments:
Speaker, spoke in opposition of the item.
Speaker, spoke in support of the item.
MOVED/SECOND: Council Member Reynolds/Council Member Marr MOTION: Approve staff recommendation with the following modifications:
1) Update footnote 1 of Table 13-47(b) to permit previously approved outdoor dining areas within the drive aisle provided they do not interfere with the minimum required site access or circulation.
2) Update section 13-48(a)(1)(a) to prioritize outdoor dining areas within front setbacks, and classify outdoor dining areas within side and rear setbacks as a secondary preference.
3) Update section 13-48(a)(1)(e) to strike out “circulation standards” to also facilitate previously approved outdoor dining areas within the drive aisle. 4) Update section 13-48(a)(1)(w) to strike out “on-street,” to permit outdoor dining customers to park in “public parking lots” as well as on-street public parking spaces. 5) Update section 13-48(a)(2)(b) to prioritize the preservation of mature trees in the design of outdoor dining areas.
6) Remove section 13-48(a)(1)(t) regarding barriers and aesthetics of the subject property.
SUBSTITUTE MOTION/SECOND: Mayor Stephens/Mayor Pro Tem Harlan SUBSTITUTE MOTION: Approve staff recommendation with the following modifications:
1) Update footnote 1 of Table 13-47(b) to permit previously approved outdoor dining areas within the drive aisle provided they do not interfere with the minimum required site access or circulation.
2) Update section 13-48(a)(1)(a) to prioritize outdoor dining areas within front setbacks, and classify outdoor dining areas within side and rear setbacks as a secondary preference.
3) Update section 13-48(a)(1)(e) to strike out “circulation standards” to also facilitate previously approved outdoor dining areas within the drive aisle. 81 Minutes – Regular Meeting – December 5, 2023 Page 9 of 11 4) Update section 13-48(a)(1)(w) to strike out “on-street,” to permit outdoor dining customers to park in “public parking lots” as well as on-street public parking spaces. 5) Update section 13-48(a)(2)(b) to prioritize the preservation of mature trees in the design of outdoor dining areas.
6) Keep section 13-48(a)(1)(t) barriers or other improvements installed as part of the outdoor dining area shall be consistent with the aesthetics of the subject property; and
7) Existing and newly constructed establishments that propose new outdoor dining areas shall comply with the aesthetic development standards outlined in Section 13-48 within six-months from the time of the Ordinance adoption, with an allowed six-month extension of time.
The motion carried by the following roll call vote:
Ayes: Council Member Chavez, Council Member Gameros, Mayor Pro Tem Harlan, and Mayor Stephens.
Nays: Council Member Marr and Council Member Reynolds.
Absent: Council Member Harper.
Abstain: None.
Motion carried: 4-2-1
ACTION:
1. City Council found that the project is exempt from the California Environmental Quality Act (CEQA), pursuant to CEQA Guidelines Section 15061(b)(3) (“General Rule”); and
2. Introduced for first reading, by title only, Ordinance No. 2024-01 amending Title 13 of the Costa Mesa Municipal Code (Planning, Zoning, and Development) to modify the City’s outdoor dining provisions.
1. PUBLIC HEARING REGARDING THE DEVELOPMENT IMPACT FEES ANNUAL REPORT FOR THE FISCAL YEAR ENDED JUNE 30, 2023 AND THE TRAFFIC
IMPACT FEE ANALYSIS
Presentation by Ms. Molina, Finance Director.
Public Comments: None.
MOVED/SECOND: Council Member Chavez/Council Member Reynolds MOTION: Approve staff recommendation.
The motion carried by the following roll call vote:
Ayes: Council Member Chavez, Council Member Gameros, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.
Nays: None
Absent: Council Member Harper.
Abstain: None.
Motion carried: 6-0
ACTION:
1. City Council received and filed the Development Impact Fees Annual Report for the Fiscal Year ended June 30, 2023.
82 Minutes – Regular Meeting – December 5, 2023 Page 10 of 11
2. Adopted Resolution No. 2023-56 continuing the citywide traffic impact fee for new development that incorporates recommendations from the Traffic Impact Fee Ad Hoc Committee and staff, which include:
· Continue a traffic impact fee of $235 per Average Daily Trip (ADT) based on the Capital Improvement Projects in Attachment 4 and Active Transportation projects in the adopted Active Transportation Plan (ATP).
· Approve allocation of up to ten percent (10%) of traffic impact fees towards traffic signal synchronization projects.
· Approve a five percent (5%) reduction in automobile trips as a result of ATP implementation and an additional five percent (5%) reduction in automobile trips for developments proposing to implement active transportation improvements beyond typical development requirements.
· Approve the annual accounting of the Citywide Traffic Impact Fee Program.
OLD BUSINESS: NONE.
NEW BUSINESS: NONE.
ADDITIONAL COUNCIL/BOARD MEMBER COMMITTEE REPORTS, COMMENTS, AND SUGGESTIONS – NONE.
ADJOURNMENT – Mayor Stephens adjourned the meeting back to Closed Session at 9:07 p.m. in memory of Coach Hicks.
83 Minutes – Regular Meeting – December 5, 2023 Page 11 of 11 Minutes adopted on this 16th day of January, 2024.
___________________________
John Stephens, Mayor
ATTEST:
___________________________
Brenda Green, City Clerk
84 Minutes – Study Session – December 12, 2023 Page 1 of 2
REGULAR CITY COUNCIL AND SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY, AND HOUSING AUTHORITY
DECEMBER 12, 2023 – MINUTES
CALL TO ORDER– The Study Session meeting was called to order by Mayor Stephens at 5:01 p.m.
ROLL CALL
Present: Council Member Chavez, Council Member Gameros, Council Member Marr, Council Member Reynolds, Mayor Pro Tem Harlan, and Mayor Stephens.
Absent: Council Member Harper.
PUBLIC COMMENTS – ONLY MATTERS LISTED ON THE AGENDA
Cynthia McDonald spoke on the Housing Element, requested recording outreach meetings regarding the Fairview Developmental Center, and requested a Citizens Advisory Committee for the Fairview Developmental Center.
Kathy Esfahani spoke on the Inclusionary Zoning Ordinance and affordable housing.
Speaker, spoke on the Inclusionary Zoning Ordinance.
Speaker, spoke on traffic and crime.
STUDY SESSION ITEM:
1. STUDY SESSION REGARDING THE PHASED ROLLOUT OF THE CITY’S HOUSING
ELEMENT PROGRAMS AND AN UPDATE REGARDING THE FAIRVIEW
DEVELOPMENTAL CENTER SPECIFIC PLAN EFFORT
Presentation by Ms. Le, Economic and Development Services Director.
ACTION:
City Council received the staff presentation and provided feedback regarding the City’s Housing Element Programs and regarding the Fairview Developmental Center Specific Plan.
ADJOURNMENT – Mayor Stephens adjourned the meeting at 7:40 p.m. 85 Minutes – Study Session – December 12, 2023 Page 2 of 2 Minutes adopted on this 16th day of January, 2024.
___________________________
John Stephens, Mayor
ATTEST:
___________________________
Brenda Green, City Clerk
86 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 24-008 Meeting Date: 1/16/2024
TITLE:
REVIEW AND APPROVE RECOMMENDED CITY COUNCIL MEETING CALENDAR FOR 2024 DEPARTMENT: CITY MANAGER’S OFFICE /CITY CLERK DIVISION
PRESENTED BY: BRENDA GREEN, CITY CLERK
CONTACT INFORMATION: BRENDA GREEN, CITY CLERK, 714-754-5221 RECOMMENDATION:
Review and approve recommended City Council Meeting Calendar for 2024 and cancel the Tuesday, November 5, 2024, City Council Meeting due to Election Day.
BACKGROUND:
The City conducts regularly scheduled City Council meetings on the first and third Tuesdays of the month and Study Session meetings on the second Tuesdays of the month.
Per previous Council direction at the June 7, 2016 meeting, the City Council meeting will go dark on the third Tuesday in August and per Resolution 05-8, the third Tuesday in December.
ANALYSIS:
The City Council has the legal authority to establish meeting dates and times and to cancel or reschedule such meetings with proper and timely public notice. The 2024 City proposed Council meeting calendar is as follows:
· January 16, 2024
· February 6, 2024
· February 20, 2024
· March 5, 2024
· March 19, 2024
· April 2, 2024
· April 16, 2024
87 File #: 24-008 Meeting Date: 1/16/2024
· May 7, 2024
· May 21, 2024
· June 4, 2024
· June 18, 2024
· July 2, 2024
· July 16, 2024
· August 6, 2024
· September 3, 2024
· September 17, 2024
· October 1, 2024
· October 15, 2024
· November 5, 2024
· November 19, 2024
· December 3, 2024
The regularly scheduled meeting on November 5, 2024 falls on Election Day. Canceling the November 5th meeting in advance allows time for proper public noticing and placement of items on other agendas.
ALTERNATIVES:
The City Council may choose to hold the meeting on Tuesday, November 5, 2024; however, this action is not recommended as many residents may not be in attendance due to Election Day priorities.
FISCAL REVIEW:
There is no fiscal impact.
LEGAL REVIEW:
The City Attorney’s Office has reviewed the report and approved as to form.
CITY COUNCIL GOALS AND PRIORITIES:
This item is administrative in nature.
88 File #: 24-008 Meeting Date: 1/16/2024
CONCLUSION:
Staff recommends the City Council review and approve the proposed City Council Meeting Calendar for 2024 and cancel the Tuesday, November 5, 2024 City Council Meeting.
89 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 24-024 Meeting Date: 1/16/2024
TITLE:
APPROVAL OF MAYOR’S APPOINTMENTS TO THE TRANSPORTATION CORRIDOR AGENCIES DEPARTMENT: CITY MANAGER’S OFFICE /CITY CLERK DIVISION
PRESENTED BY: BRENDA GREEN, CITY CLERK
CONTACT INFORMATION: BRENDA GREEN, CITY CLERK, 714-754-5221 RECOMMENDATION:
Staff recommends the City Council approve the following Mayor’s appointments:
1. Transportation Corridor Agencies (TCA): Appointee - Mayor John Stephens and Alternate - Councilmember Arlis Reynolds.
BACKGROUND:
The City Council is represented on a number of committees, boards and agencies throughout the County. In most cases, the Mayor has the authority to appoint the Council representative. However, the by-laws of the TCA require formal Council approval of the Mayor’sappointment. Councilmember Reynolds was the previous appointee and Mayor Stephens was the alternate.
ANALYSIS:
The Mayor has requested the following appointments to the TCA:
AGENCY APPOINTEE ALTERNATE
TCA Mayor John Stephens Councilmember Arlis Reynolds ALTERNATIVES:
There is no alternative for this item.
FISCAL REVIEW:
There is no fiscal impact.
LEGAL REVIEW:
The City Attorney’s Office has reviewed this report and has approved it as to form.
90 File #: 24-024 Meeting Date: 1/16/2024
CITY COUNCIL GOALS AND PRIORITIES:
This item is administrative in nature.
CONCLUSION:
Staff recommends the City Council approve the following Mayor’s appointment:
1. Transportation Corridor Agencies (TCA): Appointee - Mayor John Stephens and Alternate - Councilmember Arlis Reynolds.
91 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 24-003 Meeting Date: 1/16/2024
TITLE:
SECOND READING AND ADOPTION OF ORDINANCE NO. 2024-01 AMENDING TITLE 13 (PLANNING, ZONING, AND DEVELOPMENT) OF THE COSTA MESA MUNICIPAL CODE TO MODIFY THE CITY’S OUTDOOR DINING PROVISIONS (CODE AMENDMENT PCTY-23-0002) DEPARTMENT: ECONOMIC AND DEVELOPMENT SERVICES
DEPARTMENT/PLANNING DIVISION
PRESENTED BY: CAITLYN CURLEY, ASSISTANT PLANNER
CONTACT INFORMATION: CAITLYN CURLEY, ASSISTANT PLANNER, (714) 754-5692 RECOMMENDATION:
Staff recommends the Council give second reading to and adopt Ordinance No. 2024-01 approving Code Amendment PCTY-23-0002, amending Title 13 (Planning, Zoning, and Development) of the Costa Mesa Municipal Code to modify the City’s Outdoor Dining provisions.
92
City of Costa Mesa
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
Item #: 24-003 Meeting Date: 01/16/2024
TITLE: SECOND READING AND ADOPTION OF ORDINANCE NO. 2024-01 AMENDING TITLE 13 (PLANNING, ZONING, AND DEVELOPMENT) OF THE COSTA MESA MUNICIPAL CODE TO MODIFY THE CITY’S OUTDOOR DINING PROVISIONS (CODE AMENDMENT PCTY-23-0002)
DEPARTMENT: ECONOMIC AND DEVELOPMENT SERVICES DEPARTMENT/PLANNING
DIVISION
PRESENTED BY: CAITLYN CURLEY, ASSISTANT PLANNER
CONTACT INFORMATION: CAITLYN CURLEY, ASSISTANT PLANNER, 714-754-5692
RECOMMENDATION:
Staff recommends the Council give second reading to and adop t Ordinance No. 2024-01 approving Code Amendment PCTY -23-0002, amending Title 13 (Planning, Zoning, and Development) of the Costa Mesa Municipal Code to modify the City’s Outdoor Dining provisions.
BACKGROUND:
The Planning Commission reviewed the proposed code amendment on November 13, 2023, and recommended the City Council approve the amendment with modifications regarding application review thresholds, parking operation standards and outdoor dining area aesthetics.
November 13, 2023 Planning Commission Staff Report:
https://costamesa.legistar.com/View.ashx?M=A&ID=1135455&GUID=7ECD4C06-87E5-4283-8149- 4BFF97215AA2
Video:
https://costamesa.granicus.com/player/clip/4063?view_id=14&redirect=true&h=f22a251337c41beeb5 5301395ff67cc2
The City Council reviewed the proposed code amendment as recommended by the Planning Commission on December 5, 2023. The City received over 270 written comments regarding the proposed project. The majority of the comments expressed support of the code amendment and encouraged the City to continue to approve outdoor dining areas and to allow existing outdoor dining areas established during the COVID-19 pandemic to remain in place. The City received one letter of opposition of allowing outdoor dining for Trenta Pizza. Trenta Pizza has an approved land use entitlement for an outdoor dining area, and is not directly affected by the proposed ordinance. 93 Item #: 24-003 Meeting Date: 01/16/2024
Staff presented the proposed project as recommended by the Planning Commission. After considering the recommendation and public comments, the City Council recommended approval by a vote of 4-2, with the modifications outlined below:
1) Update footnote 1 of Table 13-47(b) to permit previously approved outdoor dining areas within the drive aisle provided they do not interfere with the minimum required site access or circulation. 2) Update section 13-48(a)(1)(a) to prioritize outdoor dining areas within front setbacks, and classify outdoor dining areas within side and rear setbacks as a secondary preference. 3) Update section 13 -48(a)(1)(e) to strike out “circulation standar ds” to also facilitate previously approved outdoor dining areas within the drive aisle.
4) Update section 13-48(a)(1)(w) to strike out “on-street,” to permit outdoor dining customers to park in “public parking lots” as well as on-street public parking spaces. 5) Update section 13-48(a)(2)(b) to prioritize the preservation of mature trees in the design of outdoor dining areas.
December 5, 2023 City Council Staff Report:
https://costamesa.legistar.com/View.ashx?M=F&ID=12494749&GUID=5B83F550-AD7E-44DF- BDF4-CF96BB3BBD05
Video:
https://costamesa.granicus.com/player/clip/4067?view_id=14&redirect=true&h=79ce604bb91fe3c2 05b90efd6d607da1
PUBLIC NOTICE:
Pursuant to Government Code Section 36933, a summary of the proposed Ordinance was published once in the newspaper no less than 5 days prior to the January 16, 2024 second reading. A summary of the adopted ordinance will also be published within 15 days after the adoption.
Public comments received prior to the January 16, 2024 City Council meeting may be viewed at this link: CITY OF COSTA MESA - Calendar (legistar.com)
ALTERNATIVES:
The City Council may give second reading and adopt the Ordinance as proposed, modify the Ordinance, or not adopt the Ordinance. If the City Council chooses to make substantive modifications to the Ordinance, the modified Ordinance would need to be brought back at a future meeting for second reading and adoption
FISCAL REVIEW:
The adoption of the proposed Ordinance will not have any fiscal impact.
LEGAL REVIEW:
94 Item #: 24-003 Meeting Date: 01/16/2024
The proposed Ordinance and this report have been prepared in conjunction with and approved by the City Attorney’s Office.
CONCLUSION:
Staff recommends the City Council give second reading to and adopt Ordinance No. 2024-01 approving Code Amendment PCTY-23-0002, amending Title 13 of the Costa Mesa Municipal Code (Zoning Code) to modify the City’s outdoor dining provisions.
95 ATTACHMENT 1
ORDINANCE NO. 2024-01
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, AMENDING TITLE 13 (PLANNING, ZONING, AND DEVELOPMENT) OF
THE COSTA MESA MUNICIPAL CODE RELATING TO OUTDOOR DINING
THE CITY COUNCIL OF THE CITY OF COSTA MESA , CALIFORNIA DOES HEREBY FIND AND DECLARE AS FOLLOWS:
WHEREAS, in response to the COVID -19 pandemic, the City Council adopted Urgency Ordinance No. 2020 -15, temporarily suspending the permit requirements and development standards for outdoor activities and parking contained in the zoning code applicable to dining patios, places of religious assembly, and waiver of valet parking; and WHEREAS, Urgency Ordinance No. 202 2-08 will expire on December 31, 2023; and
WHEREAS, due to the COVID -19 pandemic, significant social shifts have occurred, creating a greater interest in outdoor dining; and WHEREAS, outdoor dining has been found to promote private and public economic interests, protect the public safety and general welfare, and create a community-oriented and pedestrian friendly dining environment.
Now, therefore, THE CITY COUNCIL OF THE CITY OF COSTA MESA , CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Title 13, of the Costa Mesa Municipal Code is hereby amended to read as specified in Exhibit A, attached hereto and incorporated herein by this reference.
Section 2. Compliance with CEQA. Pursuant to the California Environmental Quality Act (CEQA), the project is exempt from the provisions of the California Environmental Quality Act (CEQA) under Section 15061(b)(3) (“General Rule”), as this action will not have any significant effect on the environment.
Section 3. Inconsistencies. Any provision of the Costa Mesa Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to affect the provisions of this Ordinance.
Section 4. Severability. If any chapter, article, section, subsection, subdivision, sentence, 96 Ordinance No. 2024-01 Page 2 of 3
clause, phrase, or portion of this Ordinance, or the application thereo f to any person, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this Ordinance or its application to other persons. T he City Council hereby declares that it would have adopted this Ordinance and each chapter, article, section, subsection, subdivision, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more subsections, subdivi sions, sentences, clauses, phrases, or portions of the application thereof to any person, be declared invalid or unconstitutional. No portion of this Ordinance shall supersede any local, State, or Federal law, regulation, or codes dealing with life safety factors.
Section 5. Effective Date. This Ordinance shall take effect thirty (30) days after its final passage.
Section 6. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted in the manner required by law.
PASSED AND ADOPTED this 16th day of January, 2024.
_____________________________
John Stephens, Mayor
ATTEST: APPROVED AS TO FORM:
________________________ _____________________________ Brenda Green, City Clerk Kimberly Hall Barlow, City Attorney
97 Ordinance No. 2024-01 Page 3 of 3
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY that the above and foregoing Ordinance No. 2024-01 was duly introduced for first reading at a regular meeting of the City Council held on the 16th day of January 2024, and that thereafter, said Ordinance was duly passed and adopted at a regular meeting of the City Council held on the 16th day of January 2024, by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of Costa Mesa this 17th day of January, 2024.
__________________________
Brenda Green, City Clerk
98 ATTACHMENT 2
(EXHIBIT A)
CHAPTER V. DEVELOPMENT STANDARDS
ARTICLE 4. ESTABLISHMENTS WHERE FOOD OR BEVERAGES ARE SERVED 13-46. Purpose.
The purpose of this article is to regulate and provide development standards for establishments where food or beverages are served. The proximity of residential uses to these types of establishments is a concern of this article. Where the distance criterio n of two hundred (200) feet from residentially-zoned property is given in this article, it shall be measured from the property line of the site to the property line of the nearest residentially- zoned property. This article also establishes requirements for outdoor dining areas to support long-term economic viability of local establishments, promote vitality in the City’s commercial areas, promote progress towards creating walkable communities by facilitating pedestrian -friendly and safe public spaces, and f acilitate and incentivize enhanced City dining experiences.
(Ord. No. 97-11, § 2, 5-5-97)
13-47. Permitted and conditionally permitted uses.
Establishments where food or beverages are served are subject to the review and approval procedures shown in Table 13-47 (a) and (b). In instances where more than one (1) review procedure is applicable to an establishment, the more stringent procedure shall apply.
TABLE 13-47 (a)
PERMITTED AND CONDITIONALLY PERMITTED USES
LOCATION AND
OPERATIONAL
CHARACTERISTICS
C1-S C1 C2 CL TC PD MG MP
Establishments with 300
square feet or less of indoor
public area. 3
P 1,2 or
P P P MC P 1 or
P
P 1 or
P P P
Establishments with more
than 300 square feet of
indoor public area.3
P 1 or
P P P MC P 1 or
P
P 1 or
P MC MC
EXCEPTIONS
Located within 200 feet of a
residential zone. (Subject to
the requirements of
P 1 or
P P P MC P 1 or
P
P 1 or
P P P
-1-
99
LOCATION AND
OPERATIONAL
CHARACTERISTICS
C1-S C1 C2 CL TC PD MG MP
section 13-49, Development
Standards for
Establishments Within 200
Feet of Residentially Zoned
Property)3
Sale of alcoholic beverages
for on-site consumption after
11:00 p.m. and/or provision
of live entertainment or
dancing located within 200
feet of a residential zone.3
P 1 or
C C C C P 1 or
C
P 1 or
C C C
Sale of alcoholic beverages
for on-site consumption after
11:00 p.m. and/or provision
of live entertainment or
dancing located not within
200 feet of a residential
zone.3
P 1 or
MC MC MC MC P 1 or
MC
P 1 or
MC MC MC
Drive-through operations.
(Subject to the requirements
of section 13-50,
Development Standards for
Drive-Through Operations)3
P 1 or
MC MC MC MC P 1 or
MC
P 1 or
MC MC MC
Establishments with less
than 300 square feet of
indoor public area located in
a multi-tenant center where
30% or more of the tenants
are similar businesses, i.e.,
establishments with less
than 300 square feet of
indoor public area.3
P 1 or
MC MC MC MC P 1 or
MC
P 1 or
MC MC MC
Establishments with a micro
brewery3
P 1 or
C C C C P 1 or
C
P 1 or
C C C
1 Pursuant to an approved master plan which specifies these operational characteristics and/or location of the business.
2 For the purposes of this table, the symbols shall have the following meaning:
P=Permitted; MC=Minor Conditional Use Permit; C=Conditional Use Permit. -2-
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3 Outdoor dining and seating areas may be considered as part of a proposed land use if allowed in the zoning district, and pursuant to the provisions, regulations and standards of this Article.
(Ord. No. 97-11, § 2, 5-5-97)
TABLE 13-47 (b)
Outdoor Dining Area Permitting Process 1
LOCATION OF OUTDOOR AREAS AND
OPERATIONAL CHARACTERISTICS Approval Process
Courtyard Area P2
Setback Area – Expansion of up to 50% of indoor
public area outdoors. 1 P2
Setback Area – Expansion of more than 50% of indoor
public area outdoors. 1 MC2
Parking Area - Expansion of up to 50% of indoor
public area outdoors and does not remove more than
five parking spaces or 25% of existing, required
parking, whichever is less. 1
P2
Parking Area – Expansion of more than 50% of indoor
public area outdoors. 1 MC2
Parking Area - removal of more than five parking
spaces, or removal of more than 25% of existing,
required parking, whichever is less. 1
MC2
1 Temporary Use Permits for outdoor dining areas, including parklets within the public right-of-way, approved through Urgency Ordinance 2020-15 may continue to operate with staff approval; however, shall comply with applicable Building and Fire Code requirements, may not interfere with minimum required site access or circulation circulation and parking lot standards, and shall comply with the aesthetic development standards outlined in Section 13-48 within six months from the time of ordinance adoption, with an allowed six-month extension of time. Outdoor dining areas approved under a temporary use permit shall also be subject to applicable fees. Any modifications to these outdoor dining areas shall be approved pursuant to this Article. 2 For the purposes of this table, the symbols shall have the following meaning:
P=Permitted; MC=Minor Conditional Use Permit.
13-48. General development standards.
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Establishments where food or beverages are served are subject to the following development standards.
(a) Existing and newly constructed establishments that propose new outdoor dining areas within courtyard, parking, setback or interior landscaped areas may be approved pursuant to this Article. Development standards provided in Section 13-48 (b)(1) applies to all outdoor dining areas. Additional development standards apply to outdoor dining areas within parking areas (Section 13-48 (a)(2)) and/or setback areas (Section 13-4 8 (a)(3)).
(1) Development Standards for all Outdoor Dining Areas:
a. Subject to the discretion of the reviewing authority, and where practical, feasible and safe, outdoor dining areas shall be located on a development site with preference given in the order of (1) existing courtyards, plazas, or oversized walkways and front setbacks (2) existing side and rear setbacks and (3) existing parking areas.
b. Where practical, feasible and safe and to promote the local vitality, outdoor dining areas shall be located on a development site with preference given to areas that can be seen from the public rights-of-way or pedestrian activity areas, compared to areas that cannot be seen from these locations.
c. Outdoor dining areas shall be maintained in good condition, kept clean and shall not result in conditions which are harmful or injurious to the public health, safety and welfare.
d. Outdoor dining areas shall be removed and the areas returned to previous conditions if the corresponding food and beverage establishment is replaced by a non-food and beverage establishment, or if the outdoor dining area is no longer in use.
e. Outdoor dining areas and their corresponding restaurant must comply with all applicable Building and Fire Safety code requirements, circulation standards, and aesthetic development standards outlined in Section 13-48 at the time of their construction. Outdoor dining areas approved under Urgency Ordinance No. 2020-15 must comply with all applicable Building and Fire Safety requirements, may not interfere with minimum required site access or circulation circulation standards, and shall comply with the aesthetic development standards outlined in Section 13-48 within six months from the time of ordinance adoption, with an allowed six-month extension of time.
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f. All outdoor dining areas shall observe State and local health guidelines for restaurants.
g. Outdoor dining areas shall not be counted as gross floor area when calculating required parking for an establishment where food or beverages are served.
h. Outdoor dining areas shall be located adjacent to their applicable food or beverage establishment. In this case, “adjacent” includes locations separated from the subject restaurant by a single pedestrian walkway and/or single vehicular drive aisle, or a single pedestrian walkway and/or two parking spaces perpendicular to the building and outdoor dining area. Outdoor dining areas may be located further from the subject restaurant when authorized by a minor conditional use permit.
i. A minimum 4-foot-wide pedestrian access to the entryways of all establishments on the subject property shall be provided.
j. Pedestrian ingress/egress to the subject establishments or businesses may not be obstructed.
k. Any proposed outdoor dining area covers (including but not limited to canopies, tents or shade covers) will require Fire and Building Department’s approval prior to installation. and shall not be located within required setbacks. Umbrellas shall be exempt from this requirement. Outdoor dining area covers/structures may encroach into a setback area with approval of a minor conditional use permit. To allow views to remain open and unobstructed, such shade structures shall not obstruct more than fifty (50) percent of the façade area along the property line(s) with either vertical (e.g., posts) or horizontal elements (e.g., planters, sloped awnings) with a minimum twenty-four (24) inches between the shade cover and any fences, walls, or other similar structures such that the outdoor seating area is not enclosed.
l. Outdoor areas may be temporarily enclosed during inclement weather with temporary structures as approved by the City’s Building and Fire Department.
m. Outdoor dining areas may not encroach into drive aisles or other vehicle circulation areas.
n. Any service of alcoholic beverages in outdoor dining areas will be subject to approval by the California Department of Alcoholic Beverage Control and shall adhere to all requirements and standards implemented by said State agency.
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o. Outdoor dining will be required to be closed between 11 PM and 6 AM; unless approved as part of a use permit as indicated in Table 13-47(a).
p. Noise concerns shall be addressed in a timely manner pursuant to Title 13, Chapter XIII of the Costa Mesa Municipal Code. A contact phone number shall be posted at the establishment’s entrance and outdoor dining area so any noise concerns can be reported to the business operator. Outdoor dining areas shall be subject to review by authorized City officials to ensure that noise complaints and/or potential noise ordinance violations are addressed. If necessary, modifications of the operating characteristics of outdoor dining areas may be required. If any noise complaints and/or noise ordinance violations are not adequately addressed, approvals for outdoor dining areas may be revoked at the discretion of the appropriate review authority.
q. Approval of live entertainment and music (amplified or non-amplified) in outdoor dining areas shall be subject to Table 13-47(a).
r. Lighting for outdoor dining areas shall comply with the following:
i. Lighting levels in the outdoor dining area shall be adequate for safety and security purposes, and shall be turned off when outdoor dining areas are not open for use.
ii. Lighting design and layout shall minimize light spill at any adjacent residential property lines and at other light-sensitive uses. Glare shields or other design features may be required to prevent light spill onto residential properties and other light- sensitive uses.
s. Walls, planters and other barriers associated with outdoor dining areas shall be designed in a way as to not visually enclose the outdoor dining area. Walls, fences and other barriers shall be a maximum of five feet high from finished grade; the lower three and a half feet of the barrier may be solid, however, the upper one and a half feet of the barrier must be open or transparent, outside of the traffic visibility triangle, or as otherwise permitted by the City’s Traffic Division or the Director of Economic and Development Services. Barriers shall not impede traffic visibility from property and public right of way.
t. Barriers or other improvements installed as part of the outdoor dining area shall be consistent with the aesthetics of the subject property. The materials, design, color and any other feature of the outdoor dining area shall complement the design of the subject food or beverage establishment, and surrounding site development. Temporary materials such as plastics, temporary fencing, non-permanent planter areas and -6-
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temporary barriers shall not be permitted as part of any barriers or other improvements.
u. Landscaping shall be installed around outdoor dining areas to the greatest extent possible. Planter boxes may be used to satisfy this requirement. Landscaping installed as part of an outdoor dining area shall complement existing landscaping onsite and shall comply with the City’s landscape standards and all applicable State and Federal requirements.
v. Outdoor dining shall be permitted in both conforming and nonconforming developments, subject to this Article.
w. The provision of outdoor dining areas shall not result in any customer parking offsite, (including in any adjacent commercial property parking areas, unless off-site parking is approved), with the exception of available on-street public parking. Customer parking shall not park in adjacent residential areas or on residential streets. If parking shortages or other parking-related problems arise, the business operator shall institute appropriate operational measures necessary to minimize or eliminate the problem in a manner deemed appropriate by the Director of Economic and Development Services or designee, including, but not limited to, reducing operating hours of the business, reducing interior or exterior seating capacities, hiring an additional employee trained in traffic control to monitor parking lot use and assist with customer parking lot circulation, and/or requiring employees to bike, walk or take public transit.
(2) Development standards for outdoor dining areas within existing setback areas:
a. To the greatest extent possible, outdoor dining areas should maintain a minimum three (3) foot-wide landscape barrier dimension between the dining area, any pedestrian or vehicular path of travel or neighboring property.
b. Outdoor dining areas shall be designed so as to preserve mature trees on site to the greatest extent possible. Any landscaping (including trees) removed as a result of a new proposed outdoor dining area shall be replaced on-site (in similar size), unless determined infeasible by the Planning Division.
(3) Development Standards for Outdoor Dining Areas within private parking areas:
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a. Outdoor dining areas within existing private parking areas may occupy parking spaces in compliance with Table 13-47 (b). New development may receive a parking credit of up to five parking spaces, or 25% of required parking spaces, whichever is less, to accommodate an outdoor dining area.
b. Outdoor dining areas within private parking areas must comply with all parking lot and circulation standards.
(b) All establishments shall comply with the applicable standards and review procedures indicated in Table 13-47, as well as with all other development standards of the appropriate zoning district.
(c) Seasonal events that include live entertainment, dancing, and/or amplified music may be allowed without a conditional use permit or live entertainment permit provided that it complies with the following standards. Each establishment is limited to four (4) nonconsecutive events per calendar year.
(1) The event shall not exceed one day in duration;
(2) The event shall be conducted entirely indoors; and (3) The event shall comply with Chapter XII, noise control. (Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-5, § 12, 3-2-98; Ord. No. 05-3, § 1e., 2-7- 05; Ord. No. 21-20, § 1, 12-7-21)
13-49. Development standards for establishments within two hundred feet of residentially-zoned property.
Establishments where food or beverages are served that are within two hundred (200) feet of residentially-zoned property shall comply with the following development standards, unless the standards are modified through the issuance of a minor conditional use permit or conditional use permit.
(a) All exterior lighting shall be shielded and/or directed away from residential areas. (b) Outdoor public communication systems shall not be audible in adjacent residential areas.
(c) Trash facilities shall be screened from view and designed and located appropriately to minimize potential noise and odor impacts to adjacent residential areas. -8-
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(d) Outdoor seating areas shall be oriented away or sufficiently buffered from adjacent residential areas.
(e) For new construction, a landscaped planter area, a minimum of five (5) feet in width, shall be provided as an additional buffer to adjacent residential areas. The planter area shall contain appropriate plant materials to provide an immediate and effective screen. Plant materials shall meet with the approval of the planning division. For remodels, the planning division may also require the construction of a landscaped planter area to buffer adjacent residential areas, if feasible. (f) For new construction, all interior property lines abutting residentially-zoned property shall have a minimum six-foot high masonry wall, as measured from the highest grade. An eight-foot high masonry wall may be required, based on the establishment’s operational characteristics, in order to provide additional protection to adjacent residential uses. A planning application may be required for walls exceeding six (6) feet in height. For remodels, the planning division may also require the construction of a masonry wall to buffer adjacent residential areas, if feasible. (g) Hours of operation for customer service shall not occur any time between 11:00 p.m. and 6:00 a.m.
(h) Truck deliveries shall not occur anytime between 8:00 p.m. and 7:00 a.m. (Ord.
No. 97-11, § 2, 5-5-97)
13-50. Development standards for drive-through operations.
Establishments with drive-through operations shall comply with the following development standards, unless the standards are modified through the issuance of a minor conditional use permit.
(a) Drive-through lanes shall not obstruct the circulation routes necessary for ingress or egress from the property, parking areas (including back-out of parking spaces), and pedestrian walkways.
(b) Each drive-through lane shall be striped, marked or otherwise distinctly delineated, and shall be a minimum of eleven (11) feet wide.
(c) On-site entrances to drive-through lanes shall be set back a minimum of twenty- five (25) feet from drive approaches from public or private streets or alleys. (d) Each drive-through lane shall be a minimum of one hundred sixty (160) feet in length, unless modified by the zoning administrator. The length of the drive-through lane shall be measured from its entrance point to the pick-up window. -9-
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(e) Vehicle stacking areas of drive-through lanes shall be a minimum distance of ten (10) feet from outdoor seating and play areas.
(f) Application for a minor conditional use permit shall include an operation statement indicating the physical improvements and operational measures proposed to minimize idling vehicle emissions.
(g) Establishments within two hundred (200) feet of residentially-zoned property shall also be subject to the development standards contained in section 13-49, Development standards for establishments within two hundred feet of residentially-zoned property. (Ord. No. 97-11, § 2, 5-5-97)
13-51. Applicability.
(a) The provisions of this article shall apply to all new establishments where food or beverages are served which are proposed. The provisions of this article shall not apply to existing uses, even when they undergo a change of ownership, unless one (1) or more of the conditions described in subsection (b) are met. (b) The provisions of this article shall apply, as appropriate, to any existing use where food or beverages are served under the following circumstances:
(1) A change of operational characteristics that includes one (1) or more of the following items:
a. An extension of the hours of operation for customer service between 11 p.m. and 6 a.m., if the establishment is within two hundred (200) feet of residentially-zoned property.
b. The introduction of the sale of alcoholic beverages for on-site consumption between 11 p.m. and 2 a.m.
c. The introduction of live entertainment or dancing, or the cumulative expansion of one hundred (100) square feet or more of the area devoted to dancing during the lifetime of the establishment.
d. The introduction of drive-through operations or the expansion of the existing drive-through operations.
e. Alterations resulting in a cumulative increase of one hundred (100) square feet or more in the floor area devoted to customer service, e.g., food and/or beverage service or entertainment, during the lifetime of the establishment.
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f. A change from any type of alcoholic beverage control license to any of the following alcoholic beverage control license types: 40 (on-sale beer); 42 (on-sale beer and wine for public premises), 48 (on-sale general for public premises); or 61 (on-sale beer for public premises) provided that the establishment is open for customer service anytime between the hours of 11 p.m. and 2 a.m.
(2) A cumulative expansion of one hundred (100) square feet or more of the gross floor area during the lifetime of the establishment. (3) The construction of new, or additional, outdoor dining area(s). (4) Discretionary review by the final review authority shall be limited to the change in operational characteristics or the expansion in the area devoted to customer service. (Ord. No. 97-11, § 2, 5-5-97; Ord. No. 00-4, § 1, 2-22-00)
CHAPTER VI. OFF-STREET PARKING STANDARDS
ARTICLE 2. NON-RESIDENTIAL DISTRICTS
13-89. PARKING REQUIRED.
The minimum amount of off-street parking as established in Table 13-89 shall be provided at the time:
(a) Any building and/or structure is constructed;
(b) Any building or structure is enlarged or increased in capacity by adding gross floor area, gross leasable area or seats;
(c) A specific use is proposed for a building site; or (d) An existing use is changed to one which requires additional parking.
At all times, with the exception of the provisions of section 13-98, Declaration of land use restriction, parking shall be provided according to the requirements of Table 13-89.
TABLE 13-89
NON-RESIDENTIAL PARKING STANDARDS
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USE PARKING RATIO PER GROSS FLOOR
AREA (except as noted otherwise)
Retail; offices; central administrative
offices; establishments where food or
beverages are served with a maximum of
300 square feet of public area 1
4 spaces per 1,000 square feet with a
minimum of 6 spaces 2
Office buildings exceeding 2 stories in
height and 100,000 square feet in area 3 spaces per 1,000 square feet Banks; savings and loans; credit unions 5 spaces per 1,000 square feet with a minimum of 6 spaces
Medical and dental offices; acupressure;
massage
6 spaces per 1,000 square feet with a
minimum of 6 spaces
Furniture and appliance stores with floor
area greater than 5,000 square feet
2 spaces per 1,000 square feet with a
minimum of 20 spaces
Churches; theaters; mortuaries;
auditoriums; services and fraternal clubs
and lodges; amphitheaters and other
similar places of assembly
Within the main auditorium or assembly
area: 1 space for each 3 fixed seats or 1
space for every 35 square feet of seating
area if there are no fixed seats. 18 lineal
inches of bench shall be considered
equal to 1 fixed seat.
Racquetball and tennis facilities
3 spaces per court plus parking required
for incidental uses such as restaurants
which shall be calculated as noted below
Establishments where food or beverages
are served with more than 300 square
feet of public area 1, 4
10 spaces per 1,000 square feet for the
first 3,000 square feet; 2
12 spaces per 1,000 square feet for each
additional 1,000 square feet above the
first 3,000 square feet. 2
Health clubs; spas; figure salons; skating
rinks; game arcades
Parking requirement is 10 spaces per
1,000 square feet
Bowling alleys
3 spaces per lane plus parking required
for incidental uses such as restaurants
which shall be calculated as noted under
“Establishments where food or beverages
are served”
Trade schools; business colleges;
dancing and music academies 10 spaces per 1,000 square feet Motels
1 space for each rentable unit without
cooking facilities. Each rentable unit with
cooking facilities shall be governed by
residential parking standards
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USE PARKING RATIO PER GROSS FLOOR
AREA (except as noted otherwise)
Hotels
1 space for each 2 rentable units plus 10
spaces per 1,000 square feet for the first
3,000 square feet, and 20 spaces per
1,000 square feet for each additional
1,000 square feet above the first 3,000
square feet for restaurant, banquet,
meeting room and kitchen spaces
Establishments with live entertainment;
i.e., go-go dancers, topless dancers,
bikini dancers
1 parking space for each person for the
first 100 persons as authorized by
capacity signs posted by the fire
department; 1 parking space for each 2
persons for every 101 to 300 persons as
authorized by capacity signs posted; 1
parking space for each 3 persons for
every 301 plus persons as authorized by
capacity signs posted by the fire
department.
Shopping centers with a minimum of
600,000 square feet of contiguous gross
leasable area:
Main structure or group of abutting
structures
Retail 5 spaces per 1,000 square feet of gross
leasable area
Establishments where food or beverages
are served occupying 5% or less of the
total contiguous gross leasable area
1 space per 1,000 square feet of gross
leasable area
Establishments where food or beverages
or served in excess of 5% of the total
contiguous gross leasable area
5 spaces per 1,000 square feet of gross
leasable area
Office Space occupying 10% or less of
the total contiguous gross leasable area
None
Office Space in excess of 10% of the total
contiguous gross leasable area
4 spaces per 1,000 square feet of gross
leasable area with a minimum of 6
spaces
Theaters (cumulative)
750 seats and less 5 spaces per 1,000 square feet of gross leasable area
More than 750 seats 5 spaces per 1,000 square feet of gross leasable area plus 3 spaces for each
additional 100 seats
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USE PARKING RATIO PER GROSS FLOOR
AREA (except as noted otherwise)
Uses within freestanding structures
Establishments where food or beverages
are served
10 spaces per 1,000 square feet of gross
leasable area
All others Pursuant to this table
Mixed use developments
When there are mixed uses within a
single development which share the
same parking facilities, the total
requirement for parking should be
determined as outlined in “City of Costa
Mesa Procedure for Determining Shared
Parking Requirements” which are
included herein by this reference and
which may be amended from time to time
by resolution of the city council. A greater
reduction in parking than would be
allowed under this procedure may be
approved by minor conditional use permit
where it can be demonstrated that less
parking is needed due to the hours of
operation or other unusual features of the
users involved.
For mixed-use developments located in the
mixed-use overlay zone, refer to the applicable
urban plan for parking rates.
Industrial
3 parking spaces shall be provided per
1,000 square feet of gross floor area for
the first 25,000 square feet of building; 2
parking spaces shall be provided per
1,000 square feet of gross floor area
between 25,000 and 50,000 square feet
of building; and one and one-half parking
spaces shall be provided per 1,000
square feet of gross floor area over
50,001 square feet of building.
Garden centers; plant nurseries
4 spaces per 1,000 square feet of gross
floor area; and 2 spaces per 1,000
square feet of outdoor display area.
Smoking lounges 17 spaces per 1,000 square feet
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1 Establishments limited to seating for twelve (12) or fewer persons prior to June 4, 1997, shall remain at that seating limit unless additional parking is provided pursuant to this Zoning Code.
2 The outdoor patio seating area(s) shall not be included in the floor area calculations for purposes of determining the required parking.
3 The final review authority may apply a maximum credit of one parking space due to the provision of bicycle racks. This credit shall only apply to the overall parking supply and not to multiple uses.
When the approval of a use permit is required, the final review authority may require additional parking spaces at a ratio not to exceed thirty (30) spaces per one thousand (1,000) square feet of floor area of the entire building. Factors that may warrant additional parking include, but are not limited to, the provision of entertainment and/or dancing, or substantial ratio of floor area devoted to bar as compared to restaurant use. The maximum parking rate shall be applicable to uses that have substantially maximized the building’s occupancy due to design and provision of concentrated uses.
4 When the approval of a use permit is required, the final review authority may require additional parking spaces at a ratio not to exceed thirty (30) spaces per one thousand (1,000) square feet of floor area of the entire building. Factors that may warrant additional parking include, but are not limited to, the provision of entertainment and/or dancing, or substantial ratio of floor area devoted to bar as compared to restaurant use. The maximum parking rate shall be applicable to uses that have substantially maximized the building’s occupancy due to design and provision of concentrated uses.
(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-5, § 16, 3-2-98; Ord. No. 02-4, § 1j, 3-18-02; Ord. No. 06-9, § 1g., 4-18-06; Ord. No. 12-4, § 1, 5-15-12; Ord. No. 15-10, § 2C, 9-15- 15; Ord. No. 21-20, § 1, 12-7-21)
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CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 24-009 Meeting Date: 1/16/2024
TITLE:
AUTHORIZATION FOR THE RETIREMENT OF POLICE SERVICE DOG BODI AND THE SALE OF
POLICE SERVICE DOG BODI TO OFFICER GEORGE MARIDAKIS
DEPARTMENT: POLICE DEPARTMENT
PRESENTED BY: JESSE CHARTIER, SERGEANT
CONTACT INFORMATION: JESSE CHARTIER, SERGEANT, (714) 754-5043 RECOMMENDATION:
Staff recommends the City Council:
1. Approve the retirement of Police Service Dog Bodi after five years of outstanding service to the community.
2. Authorize the City Manager or designee to execute the purchase agreement for the sale of Police Service Dog Bodi to Officer George Maridakis.
BACKGROUND:
Bodi was born in the Netherlands on February 20, 2014 and joined the Costa Mesa Police Department (CMPD) in December 2018 as the first Police Service Dog with the Police Department in many years. Bodi and his partner, Officer George Maridakis, joined forces and began patrolling the City of Costa Mesa in 2019. By 2020, Bodi became a dual-purpose police service dog certified in narcotics detection.
Over the course of 5 years, Bodi has provided safety to officers, and saved countless hours in building and area searches, and made numerous finds of criminal suspects. On three separate incidents, Bodi found violent suspects who concealed themselves and remained unseen by the police helicopter overhead.
Bodi has been an excellent de-escalation tool. On multiple occasions, his mere presence and barking caused armed felons to surrender and be safely taken into custody. Bodi has also been instrumental during illegal narcotics investigations resulting in over 40 arrests. His work has led to the seizure of over 30 kilograms of cocaine ($900k), 55 kilograms of fentanyl ($1.1m), 2 pounds of heroin ($26k), and 1,000 kilograms of methamphetamine ($3.5m).
For five years, Bodi has served the Costa Mesa community and put his life on the line for his partner
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File #: 24-009 Meeting Date: 1/16/2024
For five years, Bodi has served the Costa Mesa community and put his life on the line for his partner and fellow CMPD officers.
ANALYSIS:
At the age of 9 years old and in the twilight of his career, Bodi’sage and physical condition preclude him from further effective service to the City and the Police Department. It is recommended that Bodi be officially retired, with his retirement date set for January 27, 2024.
ALTERNATIVES:
No alternatives can be considered on this item.
FISCAL REVIEW:
No fiscal impact.
LEGAL REVIEW:
The City Attorney’s Office has approved this report and the attached purchase agreement as to form.
CITY COUNCIL GOALS AND PRIORITIES:
This item supports the following City Council Goal:
· Strengthen Public Safety and Improve the Quality of Life CONCLUSION:
Staff recommends the City Council:
1. Approve the retirement of Police Service Dog Bodi after his five years of outstanding service to the community.
2. Authorize the City Manager or designee to execute the purchase agreement for the sale of Police Service Dog Bodi to Officer George Maridakis.
115
CITY OF COSTA MESA
POLICE DEPARTMENT
PURCHASE AGREEMENT
This agreement between the City of Costa Mesa ("City") and Officer George Maridakis ("Officer") is made with reference to the following:
1. The Officer is a member of the Costa Mesa Police Department and is assigned to the Field Operations Division (K-9 Detail) as a K-9 Handler.
2. The Officer was, in conjunction with his assignment as a K -9 Handler, given the care, custody, and control of a police dog named "Bodi" ("Dog").
3. The dog has been specially trained to assist officers in law enforcement tasks and to respond to commands issued specifically by the Officer.
4. The sale or transfer of the Dog to a person other than the Officer could generate potential City liability due to the nature of a police working dog, and its bond with the Officer.
5. The age and health of the Dog preclude any further service with the City.
6. The Officer has been the Dog's handler since the purchase of the Dog by the City in 2019. Therefore, the City intends to sell the Dog to the Officer subject to the conditions specified in this agreement.
THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. City hereby sells the Dog to the Officer for $1.00, payable when this contract is executed. The Officer shall be the owner of the Dog upon execution of this contract and the payment of $1.00.
2. The Officer agrees and hereby assumes ownership and full responsibility for the care, maintenance, food, housing, medical, and any other expenses resulting from or arising from the Officer's ownership of the Dog.
3. The City will have no further responsibility or liability for the Dog or the Dog's care, with the exception of the following:
a. Any unpaid veterinary expenses incurred by Dog up to the date of retirement (January 27, 2024 ) shall be the responsibility of the City.
These veterinary expenses shall include any unpaid balance currently being considered by the City, expenses not covered by the Dog's insurance carrier, and any other expenses known or unknown at the time of retirement.
ATTACHMENT 1
116
b. In recognition of the Dog's years of service to the City, should euthanasia become necessary due to the Dog's deteriorating condition. The city shall reimburse the Officer for normal and necessary costs for such euthanasia. The decision to euthanize Dog is the responsibility of the Officer.
4. The Officer agrees to defend, indemnify, and hold harmless City and its officers, employees, representatives, and agents with respect to any loss, damage, claim, injury, or liability that arises out of or is in any way related to, the Dog or Officer's actions or inaction with the Dog outside the course and scope of employment.
5. The Officer gives up and waives any right he may have on behalf of himself and his heirs, assigns, and successors for any loss, injury, damage, claim , or liability arising out of or in any way related to the Officer's ownership and possession of the Dog.
6. This agreement constitutes the parties' entir e understanding and may not be amended, except by a writing signed by both parties.
George Maridakis Date
Officer
Ronald A. Lawrence Date
Chief of Police
Kim Barlow Date
City Attorney
Brenda Green Date
City Clerk
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CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 24-010 Meeting Date: 1/16/2024
TITLE:
AUTHORIZATION FOR THE PROCUREMENT OF DATA ANALYTICS SOFTWARE WITH
PEREGRINE
DEPARTMENT: POLICE DEPARTMENT
PRESENTED BY: OLIVIA ROGERS, RECORDS & EVIDENCE MANAGER CONTACT INFORMATION: OLIVIA ROGERS, RECORDS & EVIDENCE MANAGER, (714) 754-5696
RECOMMENDATION:
Staff recommends the City Council:
1. Approve the purchase of data analytics software based on pricing provided through a cooperative agreement with the City of Fremont, No.21-0113.
2. Authorize the purchase of data analytics software under the awarded Organized Retail Theft Prevention Grant (ORT) with Peregrine Technologies in the amount of $315,000.
3. Authorize the City Manager and City Clerk to execute an agreement with Peregrine Technologies in a form approved by the City Attorney.
BACKGROUND:
The Costa Mesa Police Department (CMPD) seeks to appropriate funds from the State of California Board of State and Community Corrections (BSCC) for the Organized Retail Theft Prevention (ORT) Grant award by entering into a three-year agreement with technology provider Peregrine Technologies.
Peregrine Technologies will provide real time data visualization to integrate a broad range of current and evolving technologies. Furthermore, it will provide a single point of access to view and analyze large-scale and real time data from various sources to enhance intelligence gathering, investigations, situational awareness, and officer safety.
ANALYSIS:
The proposed purchase of Peregrine Technologies software is necessary to comply with reporting requirements set forth under the awarded $3.5 million ORT Grant. The procurement of data analytics software through the ORT Grant will allow the CMPD to focus its efforts on prevention, apprehension, collaboration, and enhanced law enforcement efforts. Peregrine Technologies offers significant functionality in investigative resources and crime analytics. The integration of Peregrine with our Computer Aided Dispatch (CAD), Records Management System (RMS) along with Flock LPR
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Computer Aided Dispatch (CAD), Records Management System (RMS) along with Flock LPR camera system, will be the cornerstone of real time operations. In addition to this integration, Peregrine’sinvestigatory capabilities, streamlined crime analysis, and ability to generate intelligence- led products and reports, makes for an extremely efficient method for turning large amounts of raw data into useful decision support and analysis with significant reduction in manual processing.
The City of Fremont completed a competitive request for proposal (RFP) process for a data visualization platform for real time operations for their police department. Their RFP process ended on September 14, 2020. In the City of Fremont’s agreement with Peregrine Technologies, cooperative language was included that allowed other California government entities to contract with Peregrine Technologies for the same or substantially similar products or services without undergoing a separate competitive procurement process. The City of Fremont awarded a three-year agreement to Peregrine Technologies.
Peregrine Technologies has expressed its commitment and enthusiasm to work with the CMPD to ensure smooth operations of real time capabilities to meet the department’sgoal to centralize all events, data, and resources in one place to increase situational awareness and officer safety.
Additionally, enhancing our intelligence-led policing philosophy through the use of technology to reduce crime and address community issues.
ALTERNATIVES:
The City Council may elect not to move forward with the purchase of Peregrine Technologies; however, this alternative is not recommended as the primary goal of the awarded ORT Grant is to increase directed enforcement and investigative capabilities in an effort to reduce retail theft in the community.
FISCAL REVIEW:
There are sufficient appropriations for technology software under the awarded $3.5 million ORT Grant to fund this purchase over a three-year period. This purchase will not impact the General Fund.
LEGAL REVIEW:
The City Attorney’s Office has reviewed this agenda report and approved it as to form.
CITY COUNCIL GOALS AND PRIORITIES:
This item supports the following City Council Goal:
· Strengthen the Public’s Safety and Improve the Quality of Life
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CONCLUSION:
Staff recommends that the City Council:
1. Approve the purchase of data analytics software based on pricing provided through a cooperative agreement with the City of Fremont, No.21-0113.
2. Authorize the purchase of data analytics software under the awarded Organized Retail Theft Prevention Grant (ORT) with Peregrine Technologies in the amount of $315,000.
3. Authorize the City Manager and City Clerk to execute an agreement with Peregrine Technologies in a form approved by the City Attorney.
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Copyright 2022, Peregrine Technologies, Inc. All rights reserved. Copyright extends to all pages of this document.
PEREGRINE CUSTOMER ORDER FORM
Customer Information
Customer Name: The Costa Mesa Police
Department Contact: Olivia Rogers
Address: 99 Fair Dr, Costa Mesa, CA 92626 Phone: (714) 754‐5280 Email: [email protected] Fax: N/A
Peregrine Services
Effective Date: January 31, 2024
Term: From the Effective Date through January 31, 2027 (“Initial Term”).
Service Fee: The following fee schedule is available to the Customer if Order Form is signed on or before January 31, 2024. Unless otherwise terminated as set forth in the Terms and Conditions, Customer shall pay Peregrine a service fee of $105,000 annually for the Term as follows:
a. $105,000 within 30 days of the Effective Date
b. $105,000 within 30 days of November 1, 2025
c. $105,000 within 30 days of November 1, 2026
Users: Customer may allow an unlimited number of employees of the Costa Mesa Police Department to access and use the Service.
Onboarding and Training Services: Peregrine will provide Customer with an introductory training session that provides an overview of the Service, background on accessible data sources as of the Effective Date and an introduction to the analytic capabilities of the Service. Peregrine will provide additional training, including refresher sessions and advanced training modules, from time to time upon mutual agreement of the parties.
Professional Services: The initial Customer Data sources and systems that Peregrine will integrate with the Service for Customer are: Central Square CAD, Central Square RMS, Flock LPR (with 30 day retention), Watchguard, Veritone and three additional source system upon mutual agreement between Peregrine and Customer.
Additionally, with the execution of appropriate Memorandums of Understanding (MOU), Peregrine will enable data sharing between the Customer and other Orange County agencies (e,g., the Orange County Sheriff, Anaheim, Huntington Beach, Fullerton).
ATTACHMENT 1
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Peregrine services are provided subject to the terms set forth above on this Order Form together with the attached terms and conditions (the “Terms and Conditions,” and together with this Order Form, the “Agreement”). Any capitalized term used in this Order Form but not defined herein shall have the meaning ascribed to it in the Terms and Conditions. By signing this Order From, Peregrine and Customer each agree to the terms and conditions set forth in this Agreement. In the event of any conflict between this Order Form and the Terms and Conditions, the terms of this Order Form shall govern to the extent of such conflict. This Order Form may be executed in counterparts (which may be delivered by electronic mail of .pdf files), each of which counterparts, when so executed and delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.
Peregrine: Customer:
By: By:
Name: Nicholas Noone Name:
Title: President & CEO Title:
Signed by: January 31, 2024 Signed by: January 31, 2024 Attest:
____________________________________
[XX]
Any additional data integrations or new functionality shall be subject to mutual written agreement of the parties, including with respect to fees. All additional data integration services or new functionality and corresponding fees will be set forth in an SOW.
For clarity, Peregrine will provide any other Professional Services and additional data integration services in accordance with Section 2.2 of the Terms and Conditions. 122
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Peregrine Customer Terms and Conditions
These Peregrine Customer Terms and Conditions govern the provision of the services described on the attached Order Form (“Order Form”) by Peregrine Technologies, Inc. (“Peregrine”) to the Costa Mesa Police Department (“Customer”). By executing an Order Form with Peregrine, Customer agrees to be bound by these Terms and Conditions.
1. Definitions.
“Aggregated Data” has the meaning specified in Section 6.1. “CJIS Security Policy” means the FBI CJIS Security Policy document as published by the FBI CJIS Information Security Officer, currently located at https://www.fbi.gov/services/cjis/cjis‐security‐policy‐resource‐center. “Client‐Side Software” means any software in source or object code form that Peregrine makes available for use in connection with the Service, including Peregrine’s mobile application(s). “Criminal Justice Information Services Division” or “CJIS” means the FBI division responsible for the collection, warehousing, and timely dissemination of relevant criminal justice information to the FBI and to qualified law enforcement, criminal justice, civilian, academic, employment and licensing agencies. “Customer Data” means any of Customer’s data, information, documents or electronic files that are provided to Peregrine via the Service or otherwise in connection with this Agreement, including any databases Customer procures from third party vendors for Peregrine’s integration with the Service; provided that, for purposes of clarity, Customer Data as defined herein does not include Aggregated Data. “Documentation” means the materials supplied by Peregrine hereunder, in any media, including any and all installer’s, operator’s and user’s manuals, training materials, guides, functional or technical specifications or other materials for use in conjunction with the Service.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy. “Professional Services” has the meaning specified in Section 2.2. “Service” means Peregrine’s proprietary platform that assists Users with criminal investigations and police leadership decision making, consisting of a hosted web‐based interface and the Client‐Side Software. For purposes of this Agreement, the Service is exclusive of Professional Services that may be rendered upon mutual agreement of the parties in accordance with Section 2.2.
“SOW” has the meaning specified in Section 2.2.
“Third Party Data” means any third party databases that Peregrine licenses from third party vendors and makes accessible via the Service. For clarity, Third Party Data does not include any Customer Data. “Third Party Products” means any third‐party products provided with, integrated with, or incorporated into the Service, including Third Party Data.
“Users” means the individuals authorized by Customer to use the Service in accordance with the terms in the Order Form (including number and type of individuals who may access the Service) and that have been supplied user identifications and passwords by Peregrine.
2. Provision of the Service and Additional Services.
2.1. Service. During the Term and subject to the terms and conditions of this Agreement, including payment of the fees set forth on the Order Form, Customer may: (a) access and use the Service for up to the number of Users set forth in the Order Form, (b) download and reproduce the applicable Documentation solely for internal use in association with the Service, and (c) download, install, and use any Client‐Side Software in support of Customer’s 123
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use of the Service, in each case on a nonexclusive, non‐transferable, and non‐sublicensable basis and solely for Customer’s internal business purposes. Peregrine shall provide Customer with authentication credentials for individual Users upon written request from authorized personnel of Customer, (ii) onboarding and training services as set forth in the Order Form (“Onboarding and Training Services”), and (iii) telephone and standard technical support to Customer during normal business hours (“Technical Support”). Except as set forth herein, Peregrine shall, at its sole cost and expense, provide all facilities and equipment that may be necessary for Peregrine to perform the Services.
2.2. Professional Services. Except as set forth in the Order Form, in the event that Customer requests that Peregrine perform data integration, configuration or implementation services regarding the Service, including integration of Customer Data or Third Party Data and creation of specific modifications to the Service (but excluding any Onboarding and Training Services), Peregrine will discuss the scope and fees for such services and, if agreed, such work will be performed pursuant to a statement of work executed by the parties and referencing this Agreement that describe such scope and fees (an “SOW,” and such services, the “Professional Services”). Any fees associated with the Professional Services shall be set forth in the applicable SOW and Customer shall pay such fees in accordance with Section 4.2 below. To the extent the Professional Services result in any software code or other tangible work product (“Work Product”), all such Work Product will remain owned solely and exclusively by Peregrine and may be used by Customer solely in connection with Customer’s authorized use of the Service under this Agreement. Customer shall permit Peregrine access to Customer’s offices and any other facilities necessary for Peregrine to provide the Professional Services.
2.3. Access and Policies. Customer will permit Peregrine access to Customer’s offices and any other facilities necessary for Peregrine to provide the Service, Onboarding and Training Services, Technical Support, and any Professional Services. Peregrine agrees to, and cause its personnel to, abide by Customer’s facilities access and use policies as provided by Customer to Peregrine in writing in advance of any on‐site visits. Customer will also permit and enable Peregrine to have offsite access to Customer Data and the Customer’s production platform for the Service in order to provide the Service, Technical Support and Professional Services. Peregrine agrees to comply with the CJIS Security Policy in connection with its access to Customer Data, including CJIS‐defined policies for remote access.
2.4. Compliance with Applicable Laws. Each party and its agents shall comply with all laws applicable to the performance or receipt, as applicable, of the Service hereunder.
2.5. Licenses and Permits. Peregrine and its employees, agents, and any subcontractors have, and will maintain at their sole cost and expense, all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. In addition to the foregoing, Peregrine and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from Customer as required by law.
2.6. Nondiscrimination and Equal Opportunity. Peregrine shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, genetic information, marital status, sex, sexual orientation, gender or gender identity, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Peregrine under this Agreement. Peregrine shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Peregrine thereby.
2.7. Suspension. Notwithstanding anything to the contrary in this Agreement, Peregrine may temporarily suspend Customer’s and any User’s access to any portion or all of the Service if: (a) Peregrine reasonably determines that (i) there is a threat or attack on the Service; (ii) Customer’s or any User’s use of the Service disrupts or poses a security risk to the Service or to any other customer or vendor of Peregrine; (iii) Customer, or any User, is using the Service for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (v) Peregrine’s 124
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provision of the Service to Customer or any User is prohibited by applicable law; or (vi) any Customer Data submitted, posted, or otherwise transmitted by or on behalf of Customer or an User through the Service may infringe or otherwise violate any third party’s intellectual property or other rights; (b) any vendor of Peregrine has suspended or terminated Peregrine’s access to or use of any Third Party Products required to enable Customer to access the Service; or (c) if Customer fails to pay any undisputed fees when due (any such suspension described in subclauses (a), (b), or (c), a “Service Suspension”). Peregrine shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. Peregrine shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Peregrine will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Service Suspension.
2.8. Third Party Products. Peregrine may from time to time make Third Party Products available to Customer or Peregrine may allow for certain Third Party Products to be integrated with the Service. For purposes of this Agreement, such Third Party Products are subject to their own terms and conditions. Peregrine is not responsible for the operation of any Third Party Products and makes no representations or warranties of any kind with respect to Third Party Products or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third Party Products, then Customer should not install or use such Third Party Products. By authorizing Peregrine to transmit Customer Data from Third Party Products into the Service, Customer represents and warrants to Peregrine that it has all right, power, and authority to provide such authorization.
2.9. Open Source Components. Certain aspects of the Service, such as the Client‐Side Software, may contain or be distributed with open source software code or libraries (“Open Source Components”). Peregrine will provide a list of Open Source Components for a particular version of any distributed portion of the Service, such as the Client‐ Side Software, on Customer’s request. To the extent required by the license applicable to such Open Source Components: (a) Peregrine will use reasonable efforts to deliver to Customer any notices or other materials (such as source code); and (b) the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of such licenses prohibit any of the restrictions in this Agreement with respect to any particular Open Source Component, such restrictions will not apply to such Open Source Component.
To the extent the terms of such licenses require Peregrine to make an offer to provide source code or related information in connection with the Open Source Component, such offer is hereby made. For purposes of clarity, Open Source Components are Third Party Products.
3. Customer Responsibilities.
3.1. Generally. Customer is responsible for all activities that occur under User accounts. Customer also shall: (a) ensure it has all rights necessary for Peregrine to integrate the Customer Data with the Service; (b) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (c) prevent unauthorized access to, or use of, the Service, and notify Peregrine immediately of any unauthorized access or use; (d)_ensure each User has its own unique account on the Service and that Users do not share their account credentials with one another or any third party; and (e) comply with all applicable laws in using the Service. Customer agrees to provide its Users with the applications necessary to run the Service as set forth in the Documentation.
3.2. Use Restrictions. Customer shall not use the Service for any purposes beyond the scope of access granted under this Agreement. Without limiting the generality of the foregoing, Customer shall not, and shall ensure Users do not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (b) send spam or otherwise duplicative or unsolicited messages via the Service; (c) send or store infringing or unlawful material; (d) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (f) attempt to gain unauthorized access to the Service or its related systems or networks; (g) copy, modify, or create derivative works based upon the Service or any component thereof; (h) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service or any component thereof; (i) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any third party or that violates any applicable law; (j) 125
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access or use the Service for purposes of competitive analysis of Peregrine or the Service, the development, provision, or use of a competing service or product, or any other purpose that is to Peregrine’s detriment or commercial disadvantage; or (k) input, upload, transmit, or otherwise provide to or through the Service any information or materials, including Customer Data, that are unlawful or injurious in any way
3.3. CJIS Requirements. Customer certifies that it and its Users will comply with the following CJIS requirements:
(a) Customer agrees to use training, policy and procedures to ensure Users use proper handling, processing, storing and communication protocols for Customer Data and any Third Party Data; (b) Customer agrees to protect the Service and any Third Party Data by monitoring and auditing staff user activity to ensure that it is only within the purview of system application development, system maintenance and the support roles assigned; (c) Customer will only provide access to the Service and any Third Party Data through Customer‐managed role‐based access and applied sharing rules configured by Customer; (d) Customer agrees to create and retain activity transaction logs to enable auditing by Peregrine staff, CJIS and any Third Party Data owners; (e) Customer agrees to perform independent employment background screening for its staff at Customer’s own expense; and (f) Customer agrees to reinforce staff policies for creating User accounts with only one Customer domain email address for each User, with exceptions only as granted in writing by Peregrine.
3.4. Operation Restrictions. Under certain circumstances, it may be dangerous to operate a moving vehicle while attempting to operate a laptop, mobile device or other touch screen and any of their applications. Customer agrees that the Users will be instructed to only utilize the interface for the Service at times when it is safe to do so.
Peregrine is not liable for any accident caused by a result of distraction such as from viewing the screen while operating a moving vehicle.
3.5. Customer Logo. Peregrine may use Customer’s name and logo in Peregrine’s lists of customers provided that such use will comply with any standard trademark guidelines provided by Customer to Peregrine.
3.6. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Peregrine by mail, email, telephone, or otherwise, suggesting or recommending changes to the Service, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Peregrine is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.
4. Fees & Payment.
4.1. Fees. Customer shall pay the fees for the Service as specified in the Order Form and in any SOWs. All fees are non‐refundable except to the extent otherwise expressly set forth in this Agreement.
4.2. Payment Terms. Except as set forth on the Order Form, Customer shall pay all fees within thirty (30) days of Peregrine issuing an invoice.
4.3. Taxes. Peregrine’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Peregrine’s income. If Peregrine has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Peregrine with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights. The “Peregrine Technology “means (a) the Peregrine name, the Peregrine logo, and other trademarks and service marks; (b) audio and visual information, documents, software and other works of authorship, including training materials; (c) other technology included in the Service, including Client‐Side Software, graphical user interfaces, workflows, products, processes, algorithms, know‐how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information provided by Peregrine under this Agreement; and (d) the work product or other results of Professional Services. Peregrine owns and shall retain all rights in the Peregrine Technology. Other than as expressly set forth in Section 2.1 above, no license or other rights in or to the Peregrine Technology or related intellectual property rights are granted to Customer or Users, and all such licenses and rights are hereby expressly reserved to Peregrine. For clarity, “Peregrine Technology” does not include Customer Data.
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6. Data Access, Sharing and Security.
6.1. Customer Data. Peregrine may access, reproduce, and use Customer Data to provide the Service, including to provide Technical Support, Onboarding and Training Services and any Professional Services. Customer agrees that Peregrine may generate technical logs, data and insights about Customer’s usage of the Service (e.g., frequency of logins) (“Peregrine Insights”) and may use the Customer Data in aggregated and anonymized form that does not individually identify any person or entity, including Customer or its Users (“Aggregated Data”) for Peregrine’s internal business purposes and to operate and improve Peregrine’s proprietary software and services, and that Peregrine shall own the Peregrine Insights and the Aggregated Data. Peregrine shall destroy Peregrine Insights and Aggregated Data on termination of this Agreement. Peregrine may choose to terminate the provision of any Customer Data via the Service if the provision of such data may be harmful to the Service, as determined by Peregrine in its reasonable discretion.
6.2. CJIS Security Policy. Peregrine has implemented procedures to allow for adherence to the CJIS Security Policy. The hosting facility for the Service uses access control technologies that meet or exceed CJIS requirements.
In addition, Peregrine has installed and configured solid network intrusion prevention appliances for adherence to the CJIS Security Policy.
6.3. Third Party Data. Any Third Party Data that Peregrine may provide via the Service is governed by the third party owner’s retention policy. Peregrine does not provide any warranties with respect to any Third Party Data and Peregrine may choose to terminate the provision of any Third Party Data via the Service if Peregrine’s applicable rights to such Third Party Data terminate or the provision of such data may be harmful to the Service, as determined by Peregrine in its reasonable discretion.
6.4. Processing of Personal Information. Peregrine’s rights and obligations with respect to Personal information it collects directly from individuals are set forth in Peregrine’s Privacy Policy <https://peregrine.io/privacy‐policy/>.
Personal Information included within Customer Data and processed by Peregrine on behalf of Customer is governed by this Agreement.
6.5. Sensitive Information; Marking Requirements. To the extent Customer provides Customer Data that Customer considers to be sensitive, proprietary, restricted, or otherwise requiring sensitive treatment (“Sensitive Information”), Customer is solely responsible for providing appropriate markings to designate the applicable Customer Data as Sensitive Information. Customer shall provide Peregrine with documentation and/or instructions in writing with sufficient detail for Peregrine to identify and distinguish content that is Sensitive Information within other provided Customer Data. Customer shall (a) mark Sensitive Information on its face, (b) make the appropriate designations for Sensitive Information in document metadata, (c) provide Peregrine with a table or other list of Sensitive Information that contains sufficient detail to identify the Sensitive Information; or (d) identify Sensitive Information to Peregrine in some other mutually agreed upon method. Peregrine shall not be responsible for failure to designate Sensitive Information with specific access control status based on Customer failure to provide sufficient information to identify Sensitive Information.
7. Confidentiality.
7.1. Definition of Confidential Information. The term “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, any Third Party Data, the Service, the Documentation, the Peregrine Technology, business and marketing plans, technology and technical information, product designs, and business processes.
7.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party except to perform its obligations or exercise its rights under this Agreement, except with the Disclosing Party’s prior written permission on a case‐by‐case basis. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event with less than reasonable care. If the Receiving Party is compelled by law or a government authority to disclose Confidential Information of the Disclosing Party, it shall 127
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provide the Disclosing Party with prior notice of such compelled disclosure (to the extent practicable and legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.3. Exceptions. The parties’ obligations in Section 7.2 shall not apply to any information that: (a) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.4. Public Records Acts. Peregrine acknowledges that Customer is a public entity and may be governed by applicable laws, rules, or regulations relating to public records (each a “Public Records Act”). Nothing in this Section 7 shall prevent Customer from disclosing Confidential Information for purposes of complying with an applicable Public Records Act to the extent legally required.
7.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized disclosure or use may cause irreparable harm to the Disclosing Party for which any other available remedies are inadequate.
8. Warranties & Disclaimers.
8.1. Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Peregrine represents and warrants that (i) it will provide the Service in a professional manner consistent with the standards observed by a competent practitioner of the profession in which Peregrine is engaged, and (ii) the Service will perform in accordance with and otherwise substantially conform to its associated documentation.
8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, PEREGRINE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE, THE PEREGRINE TECHNOLOGY, ANY THIRD PARTY DATA AND ANY OTHER PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT. PEREGRINE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON‐INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Indemnification.
9.1. Indemnification by Peregrine. Peregrine shall at its expense defend Customer and its officers, directors, officials, agents, volunteers and employees (“Customer Indemnified Parties”) against any claim made or brought against any Customer Indemnified Party by a third party alleging that the Service as provided to Customer and when used in accordance with this Agreement infringes any intellectual property rights of a third party (each, a “Customer Claim”), and shall indemnify and hold Customer Indemnified Parties harmless from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney’s fees, awarded by a court or agreed to by Peregrine in a settlement with respect to such Customer Claim; provided, that Customer (a) promptly gives written notice of the Customer Claim to Peregrine; (b) gives Peregrine sole control of the defense and settlement of the Customer Claim (provided that Peregrine may not agree to any settlement that imposes any liability or obligation on Customer without Customer’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed); and (c) provides to Peregrine, at Peregrine’s cost, all reasonable assistance in the defense and settlement of the Customer Claim. Peregrine shall have no obligation under this Section 9.1 or otherwise regarding claims that arise from or relate to (i) Customer’s use of the Service other than as contemplated by this Agreement, (ii) any modifications to the Service made by any entity other than Peregrine (where the liability would not have arisen but for such modification), (iii) any combination of the Service with services or technologies not provided by Peregrine (where the liability would not have arisen but for such combination), (iv) Customer’s use of the Service or portion thereof after Peregrine has terminated this Agreement or such portion of the Service in accordance with this Section 9.1, or (v) Third Party Products. If in Peregrine’s opinion a Customer Claim is likely to be made, or if an existing Customer Claim may cause Peregrine liability, Peregrine may in its discretion (x) obtain a license to enable Customer 128
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to continue to use the potentially infringing portion of the Service, (y) modify the Service to avoid the potential infringement, or (z) if the foregoing cannot be achieved after using reasonable commercial efforts, terminate the Agreement or the license to the infringing portion of the Service and refund the amount of any pre‐paid fees applicable to the portion of the terminated Services to be provided after the termination date.
9.2. Indemnification by Customer. To the extent permitted by applicable law, Customer shall at its expense defend Peregrine and its officers, directors, officials, agents, volunteers and employees (“Peregrine Indemnified Parties”) against any claim made or brought against any Peregrine Indemnified Party by a third party based on: (a) Customer’s or any User’s negligence, gross negligence, fraud, or willful misconduct; (b) Customer’s or any User’s use of the Service in a manner not authorized by this Agreement; or (c) Customer Data or Peregrine’s authorized use of such Customer Data (each, a “Peregrine Claim”), and shall indemnify and hold Peregrine Indemnified Parties harmless from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney’s fees, awarded by a court or agreed to by Customer in a settlement with respect to such Peregrine Claim; provided, that Peregrine (i) promptly gives written notice of the Peregrine Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Peregrine Claim (provided that Customer may not agree to any settlement that imposes any liability or obligation on Peregrine without Peregrine’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance in the defense and settlement of the Peregrine Claim.
9.3. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PEREGRINE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS BY THIRD PARTIES RELATING TO THE SERVICE OR ITS USE.
10. Limitation of Liability.
10.1. Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY’S BREACH OF SECTION 7, A PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS, OR A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10.2. Liability Cap. IN NO EVENT SHALL PEREGRINE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO PEREGRINE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
11. Term & Termination.
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues for the duration of the term set forth on the Order Form (“Term”), unless earlier terminated in accordance with the Order Form or Section 11.2
11.2. Termination for Cause. A party may terminate this Agreement for cause upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Peregrine prior to the effective date of termination.
11.3. Data. Upon expiration or termination of this Agreement, Peregrine shall have no obligation to maintain or provide any Customer Data or Third Party Data. Unless legally prohibited, Peregrine shall delete all Customer Data in its systems or otherwise in its possession or under its control. Notwithstanding the foregoing or any other provision of this Agreement, Peregrine may use in perpetuity any Aggregated Data.
11.4. Survival. The following provisions shall survive termination or expiration of this Agreement: Sections 4, 5,
6.1, 6.3, 7, 8, 9, 10, 11.3, 11.4, and 12.
12. General Provisions.
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12.1. Insurance. Peregrine shall maintain the insurance coverages described on Appendix A: Insurance.
12.2. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third‐party beneficiaries to this Agreement.
At all times during the term of this Agreement, Peregrine shall be an independent contractor and shall not be an employee of Customer. Except as Customer may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of Customer in any capacity whatsoever as an agent. Peregrine shall have no authority, express or implied, pursuant to this Agreement to bind Customer to any obligation whatsoever.
12.3. Peregrine’s Books and Records. To the extent required by applicable laws, rules, or regulations, Peregrine shall maintain any and all records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the Customer under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to Peregrine to this Agreement. All such records shall be maintained in accordance with generally accepted standards and shall be made available for inspection, audit, and/or copying during regular business hours, upon written request of the Customer.
12.4. Force Majeure. Neither party shall be liable by reason of any failure or delay in performance of its obligations under this Agreement (except for the payment of money) on account of events beyond the reasonable control of such party, which may include Internet denial‐of‐service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non‐ performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
12.5. Federal Government. Any use, copy or disclosure of the Service by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided by DFARS 227.7202‐1(a) and 227.7202‐3(a)(1995), DFARS 252.227‐7013(c)(1)(ii)(October 1998), FAR 12.212(a)(1995), FAR 52.227‐19, or FAR 52.227(ALT III), as applicable.
12.6. Additional Government Terms. Peregrine acknowledges that Customer may be a public entity and, accordingly, certain additional laws, rules, and regulations may take precedence over the terms and conditions of this Agreement (the “Additional Government Terms”). The Additional Government Terms, if any, are attached hereto as Error! Reference source not found., and will govern to the extent of any conflict with any other term of this Agreement.
12.7. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon:
(a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) after confirmed receipt of an email. Notices to Peregrine shall be addressed to the attention of Nick Noone, CEO, Peregrine Technologies, [email protected], with a copy to [email protected]. Notices to Customer are to be addressed to the individual identified in the Order Form.
12.8. Waiver; Cumulative Remedies Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, Peregrine may assign this Agreement, together with all rights and obligations hereunder, without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets that relate to this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 130
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12.10. Governing Law. This Agreement shall be governed by the laws of California. The state courts located in San Francisco County, CA or in the United States District Court for the Northern District of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts provided that nothing in this Section 12.10 prohibits either party from seeking or obtaining in any jurisdiction injunctive or similar relief in connection with the enforcement of this Agreement.
12.11. Construction. The division of this Agreement into Sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular Section or other portion hereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation” and “discretion” means sole discretion
12.12. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding the Order Form) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are hereby rejected and shall be null and void.
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Appendix A: Insurance
Peregrine, at its own cost and expense, shall procure the types and amounts of insurance specified herein and maintain that insurance throughout the term of the Agreement. The cost of such insurance shall be included in the Peregrine’s bid or proposal. Peregrine shall be fully responsible for the acts and omissions of its subcontractors or other agents.
Workers’ Compensation. Peregrine shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Peregrine in the amount required by applicable law. The requirement to maintain Statutory Workers’ Compensation and Employer’s Liability Insurance may be waived by the Customer upon written verification that Peregrine is a sole proprietor and does not have any employees and will not have any employees during the term of this Agreement.
Commercial General and Automobile Liability Insurance
General requirements. Peregrine, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence and $2,000,000 aggregate, combined single limit coverage for risks associated with the work contemplated by this Agreement.
Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (most recent edition) covering any auto (Code 1), or if Peregrine has no owned autos, hired (code 8) and non‐owned autos (Code 9). No endorsement shall be attached limiting the coverage.
Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Commercial General and Automobile Liability Insurance shall cover on an occurrence basis. b. Customer, its officers, officials, employees, agents, and volunteers shall be covered as additional insureds for liability arising out of work or operations on behalf of the Peregrine, including materials, parts, or equipment furnished in connection with such work or operations; or automobiles owned, leased, hired, or borrowed by the Peregrine. Coverage can be provided in the form of an endorsement to the Peregrine’s insurance at least as broad as CG 20 10 11 85, or both CG 20 10 10 01 and CG 20 37 10 01. c. For any claims related to this Agreement or the work hereunder, the Peregrine’s insurance covered shall be primary insurance as respects the Customer, its officers, officials, employees, agents, and volunteers. Any insurance or self‐insurance maintained by the Customer, its officers, officials, employees, agents or volunteers shall be excess of the Peregrine’s insurance and non‐contributing.
d. The policy shall cover inter‐insured suits and include a “separation of Insureds” or “severability” clause which treats each insured separately.
e. Peregrine agrees to give at least 30 days prior written notice to Customer before coverage is canceled or modified as to scope or amount.
Professional Liability Insurance.
General requirements. Peregrine, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 per occurrence or claim covering the Peregrine’s errors and omissions.
Claims‐made limitations. The following provisions shall apply if the professional liability coverage is written on a claims‐made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement. 132
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b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement or the work.
c. If coverage is canceled or not renewed and it is not replaced with another claims‐made policy form with a retroactive date that precedes the date of this Agreement, Peregrine must purchase an extended period coverage for a minimum of five (5) years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the Customer for review prior to the commencement of any work under this Agreement.
All Policies Requirements.
Submittal Requirements. Peregrine shall submit the following to Customer prior to beginning services:
Certificate of Liability Insurance in the amounts specified in this Agreement; and Additional Insured Endorsement as required for the General Commercial and Automobile Liability Polices.
Acceptability of Insurers. All insurance required by this Agreement is to be placed with insurers with a Bests' rating of no less than A:VII.
Deductibles and Self‐Insured Retentions. Insurance obtained by the Peregrine shall have a self‐insured retention or deductible of no more than $100,000.
Wasting Policies. No policy required herein shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
Waiver of Subrogation. Peregrine hereby agrees to waive subrogation which any insurer or contractor may require from Peregrine by virtue of the payment of any loss. Peregrine agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the Customer has received a waiver of subrogation endorsement from the insurer.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the Customer for all work performed by the Peregrine, its employees, agents, and subcontractors.
Subcontractors. Peregrine shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein, and Peregrine shall ensure that Customer, its officers, officials, employees, agents, and volunteers are covered as additional insured on all coverages.
Excess Insurance. If Peregrine maintains higher insurance limits than the minimums specified herein, Customer shall be entitled to coverage for the higher limits maintained by the Peregrine.
Remedies. In addition to any other remedies Customer may have if Peregrine fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Customer may, at its sole option, order Peregrine to stop work under this Agreement and withhold any payment that becomes due to Peregrine hereunder until Peregrine demonstrates compliance with the requirements hereof, or terminate this Agreement.
Appendix B: Provisions for California Public Entities
Compliance with Applicable California Laws. Peregrine shall, to the extent required by the California Labor Code, pay not less than the latest prevailing wage rates as determined by the California Department of Industrial Relations.
California Public Records Act. Peregrine acknowledges that Customer is a public entity governed by the California Public Records Act and that nothing in this Agreement shall prevent Customer from disclosing Confidential Information for purposes of complying with the California Public Records Act.
PERS Indemnification by Peregrine. In the event that Peregrine or any employee, agent, or subcontractor of Peregrine providing services under this Agreement is determined by a court of competent jurisdiction or the 133
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California Public Employees Retirement System (“PERS”) to be eligible for enrollment in PERS as an employee of Customer, at Peregrine shall indemnify, defend, and hold harmless Customer for the payment of any employee and/or employer contributions for PERS benefits on behalf of Peregrine or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of Customer.
Political Reform Act Conflicts. Peregrine may serve other clients, but none whose activities within the corporate limits of Customer or whose business, regardless of location, would place Peregrine in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. No officer or employee of Customer shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq.
California State Auditor Requirements. Pursuant to Government Code Section 8546.7, the Agreement may be subject to the examination and audit of the State Auditor for a period of 3 years after final payment under the Agreement.
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CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 23-1487 Meeting Date: 1/16/2024
TITLE:
PROFESSIONAL ARCHITECTURAL AND ENGINEERING SERVICES FOR THE SHALIMAR
PARK EXPANSION PROJECT
DEPARTMENT: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION PRESENTED BY: RAJA SETHURAMAN, PUBLIC WORKS DIRECTOR
CONTACT INFORMATION: SEUNG YANG, P.E., CITY ENGINEER (714) 754-5633 RECOMMENDATION:
Staff recommends the City Council:
1. Award a Professional Services Agreement (PSA) to Community Works Design Group, Inc., 7111 Indiana Avenue, Suite 300, Riverside, California in an amount not to exceed $158,970 for the design of improvements and expansion of Shalimar Park.
2. Authorize an additional ten percent (10%) contingency in the amount of $15,897 as needed for any unforeseen costs related to this project.
3. Authorize the City Manager and the City Clerk to execute the PSA and any future amendments to the agreement within Council authorized limits.
BACKGROUND:
Shalimar Park is located at 782 Shalimar Drive. The existing park is approximately 0.18 acres and includes a playground featuring elements for young children, trees, and seating area benches. The park is situated between two large apartment complexes and currently provides the nearest recreational facility for this community.
The City secured the services of Pat West, LLC, and City Fabrick to conduct several community outreach meetings for the Shalimar Park expansion. Conceptual renderings of different options are included as Attachment 1. In addition, the preliminary park design options were discussed with the City’s Parks and Community Services (PACS) Commission on August 10, 2023.
The City released a Request for Proposals (RFP) in order to retain the services of a highly-qualified design firm with a specialty in park development projects.
The scope of professional services will include community outreach; presentations to Commissions
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The scope of professional services will include community outreach; presentations to Commissions and City Council; preparation of conceptual and schematic designs; final plans, specifications and cost estimates; bid assistance services; construction support; and other professional services necessary to complete the project.
ANALYSIS:
Staff advertised the project for architectural and engineering design services on September 5, 2023, and received seven (7) proposals from qualified bid proposers on October 16, 2023.
After careful review of the proposals, staff found Community Works Design Group, Inc. (CWDG) well qualified to perform the identified services at a competitive price of $158,970. The submitted proposal represents a thorough understanding of the project, complies with City specifications, and presents innovative approaches to providing required services. Staff has determined the proposed cost for consultant services to be reasonable for meeting the City’srequirements as listed in the scope of services. The cost for services is competitive and within industry standards for these specialized architectural and engineering services.
Therefore, staff recommends the City Council award a PSA to Community Works Design Group, Inc. (Attachment 2).
ALTERNATIVES:
The alternative would be to reject all proposals, re-advertise, and re-evaluate new proposals. Staff has determined that this will not result in a better outcome and will delay the project.
FISCAL REVIEW:
There is an adequate budget available for this contract to cover the design and construction phases.
Funds are available from the $1.0 million state budget earmarked from state Senator David Min adopted in Fiscal Year 2023-24 Capital Improvement Program (CIP) budget and other City funds for Shalimar Park budgeted in prior fiscal years.
LEGAL REVIEW:
The City Attorney’sOffice has reviewed this report and the proposed PSA and approves them both as to form.
CITY COUNCIL GOALS AND PRIORITIES:
This project works toward achieving the following City Council Goal:
· Strengthen the Public’s Safety and Improve the Quality of Life
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CONCLUSION:
Staff recommends the City Council:
1. Award a Professional Services Agreement (PSA) to Community Works Design Group, Inc., 7111 Indiana Avenue, Suite 300, Riverside, California in an amount not to exceed $158,970 for the design of improvements and expansion of Shalimar Park.
2. Authorize an additional ten percent (10%) contingency in the amount of $15,897 as needed for any unforeseen costs related to this project.
3. Authorize the City Manager and the City Clerk to execute the PSA and any future amendments to the agreement within Council authorized limits.
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CONCEPTUAL RENDERINGS
SHALIMAR PARK
ATTACHMENT 1
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2 ATTACHMENT 1
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3 HALFCOURT BASKETBALL
PLAY MOUND
PLAYGROUND SHADED PICNIC AREA
FENCE ARTIFICIAL TURN LAWN BICYCLE TRACK
ATTACHMENT 1
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4 ATTACHMENT 1
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5 HANDBALL COURT
STAGE & PLANTER
FENCE
HALFCOURT BASKETBALL
CLIMBING WAL
SHADED PICNIC AREA
PLAYGROUND
BICYCLE TRACK
GRASS LAWN
ATTACHMENT 1
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1 Community Works Design Group, LLC
CITY OF COSTA MESA
PROFESSIONAL SERVICES AGREEMENT
WITH
COMMUNITY WORKS DESIGN GROUP, LLC
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 16th day of January, 2024 (“Effective Date”), by and between the CITY OF COSTA MESA, a municipal corporation (“City”), and COMMUNITY WORKS DESIGN GROUP, LLC, a California limited liability company (“Consultant”).
RECITALS
A. City proposes to utilize the services of Consultant as an independent contractor to provide engineering design services for expansion of Shalimar Park, as more fully described herein; and
B. Consultant represents that it has that degree of specialized expertise contemplated within California Government Code section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and
C. City and Consultant desire to contract for the specific services described in Exhibit “A” and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and
D. No official or employee of City has a financial interest, within the provisions of sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described in City’s Request for Proposals, attached hereto as Exhibit “A,” and Consultant’s Proposal, attached hereto as Exhibit “B,” both incorporated herein.
1.2. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement.
1.3. Performance to Satisfaction of City. Consultant agrees to perform all the work to the complete satisfaction of the City. Evaluations of the work will be done by the City Manager or his or her designee. If the quality of work is not satisfactory, City in its discretion has the right to:
(a) Meet with Consultant to review the quality of the work and resolve the matters of concern;
ATTACHMENT 2
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2 Community Works Design Group, LLC
(b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws, including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers’ compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys’ fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant’s performance under this Agreement.
1.5. Non-Discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military or veteran status, except as permitted pursuant to section 12940 of the Government Code.
1.6. Non-Exclusive Agreement. Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Consultant may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Consultant’s sole cost and expense.
1.8. Confidentiality. Employees of Consultant in the course of their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant’s covenant under this Section shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid in accordance with the rates set forth in Exhibit “C,” attached hereto and made a part of this Agreement. Consultant’s total compensation shall not exceed One Hundred Fifty-Eight Thousand Nine Hundred Seventy Dollars ($ 158,970.00).
ATTACHMENT 2
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3 Community Works Design Group, LLC
2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the scope of services specified in the Consultant’s Proposal unless the City Manager or designee, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable.
2.3. Method of Billing. Consultant may submit invoices to the City for approval on a progress basis, but no more often than two times a month. Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction. City shall pay Consultant’s invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed, the date of performance, and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times from the Effective Date until three (3) years after termination of this Agreement.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. Unless otherwise agreed to in writing by the parties, the professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, pandemics (excluding COVID-19), material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party (each, a “Force Majeure Event”). If a party experiences a Force Majeure Event, the party shall, within five (5) days of the occurrence of the Force Majeure Event, give written notice to the other party stating the nature of the Force Majeure Event, its anticipated duration and any action being taken to avoid or minimize its effect. Any suspension of performance shall be of no greater scope and of no longer duration than is reasonably required and the party experiencing the Force Majeure Event shall use best efforts without being obligated to incur any material expenditure to remedy its inability to perform; provided, however, if the suspension of performance continues for sixty (60) days after the date of the occurrence and such failure to perform would constitute a material breach of this Agreement in the absence of such Force Majeure Event, the parties shall meet and discuss in good faith any amendments to this Agreement to permit the other party to exercise its rights under this Agreement. If the parties are not able to agree on such amendments within thirty (30) days and if suspension of performance continues, such other party may terminate this Agreement immediately by written notice to the party experiencing the Force Majeure Event, in which case neither party shall have any liability to the other except for those rights and liabilities that accrued prior to the date of termination.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue until ATTACHMENT 2
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January 15, 2027, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties.
4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Consultant.
The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City.
4.3. Compensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and including the date of City’s written notice of termination. Compensation for work in progress shall be prorated based on the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant.
4.4. Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncompleted documents without specific written authorization from Consultant shall be at City’s sole risk and without liability or legal expense to Consultant.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain, maintain, and keep in full force and effect during the life of this Agreement all of the following minimum scope of insurance coverages with an insurance company admitted to do business in California, rated “A,” Class X, or better in the most recent Best’s Key Insurance Rating Guide, and approved by City:
(a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury or bodily injury with a policy limit of not less than One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) general aggregate.
(b) Business automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00) combined single limit per accident for bodily injury and property damage.
(c) Workers’ compensation insurance as required by the State of California.
Consultant agrees to waive, and to obtain endorsements from its workers’ compensation insurer waiving subrogation rights under its workers’ compensation insurance policy against the City, its officers, agents, ATTACHMENT 2
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employees, and volunteers arising from work performed by Consultant for the City and to require each of its subcontractors, if any, to do likewise under their workers’ compensation insurance policies.
(d) Professional errors and omissions (“E&O”) liability insurance with policy limits of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. Architects’ and engineers’ coverage shall be endorsed to include contractual liability. If the policy is written as a “claims made” policy, the retro date shall be prior to the start of the contract work. Consultant shall obtain and maintain, said E&O liability insurance during the life of this Agreement and for three years after completion of the work hereunder.
5.2. Endorsements. The commercial general liability insurance policy and business automobile liability policy shall contain or be endorsed to contain the following provisions:
(a) Additional insureds: “The City of Costa Mesa and its elected and appointed boards, officers, officials, agents, employees, and volunteers are additional insureds with respect to: liability arising out of activities performed by or on behalf of the Consultant pursuant to its contract with the City; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; automobiles owned, leased, hired, or borrowed by the Consultant.”
(b) Other insurance: “The Consultant’s insurance coverage shall be primary insurance as respects the City of Costa Mesa, its officers, officials, agents, employees, and volunteers. Any other insurance maintained by the City of Costa Mesa shall be excess and not contributing with the insurance provided by this policy.”
(c) Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City of Costa Mesa, its officers, officials, agents, employees, and volunteers.
(d) The Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
5.3. Deductible or Self Insured Retention. If any of such policies provide for a deductible or self-insured retention to provide such coverage, the amount of such deductible or self-insured retention shall be approved in advance by City. No policy of insurance issued as to which the City is an additional insured shall contain a provision which requires that no insured except the named insured can satisfy any such deductible or self-insured retention.
5.4. Certificates of Insurance. Consultant shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement.
5.5. Non-Limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property.
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6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
6.2. Representatives. The City Manager or his or her designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Project Managers. City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement.
Consultant shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: (a) at the time of delivery if such communication is sent by personal delivery, and (b) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail.
IF TO CONSULTANT: IF TO CITY:
Community Works Design Group,
LLC
7111 Indiana Avenue, Suite 300
Riverside, CA 92504
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Tel: (951) 369- 0700 Tel: (714) 754- 5324
Attn: Scott Rice Attn: Irina Gurovich
Courtesy copy to:
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Attn: Finance Dept. | Purchasing
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6.5. Drug-Free Workplace Policy. Consultant shall provide a drug-free workplace by complying with all provisions set forth in City’s Council Policy 100-5, attached hereto as Exhibit “D” and incorporated herein. Consultant’s failure to conform to the requirements set forth in Council Policy 100-5 shall constitute a material breach of this Agreement and shall be cause for immediate termination of this Agreement by City.
6.6. Attorneys’ Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof.
6.7. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California.
6.8. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant’s interest in this Agreement without City’s prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City’s consent, no subletting or assignment shall release Consultant of Consultant’s obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement.
6.9. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify, hold free and harmless the City, its elected officials, officers, agents and employees, at Consultant’s sole expense, from and against any and all claims, actions, suits or other legal proceedings brought against the City, its elected officials, officers, agents and employees arising out of the negligence, recklessness, or willful misconduct of the Consultant, its employees, and/or authorized subcontractors, in the performance of the work undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Consultant, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of the Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected officials, officers, agents and employees based upon negligence, recklessness, or willful misconduct in the work performed by the Consultant, its employees, and/or authorized subcontractors under this Agreement, whether or not the Consultant, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstanding the foregoing, the Consultant shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City. In no event shall the cost to defend charged to Consultant exceed Consultant’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, Consultant shall meet and confer with other parties regarding unpaid defense costs. This provision shall supersede and replace all other indemnity provisions contained either in the City’s specifications or Consultant’s Proposal, which shall be of no force and effect.
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6.10. Independent Contractor. Consultant is and shall be acting at all times as an independent contractor and not as an employee of City. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of City. Consultant shall secure, at its sole expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Consultant shall indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with the applicable worker’s compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this paragraph.
6.11. PERS Eligibility Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
6.12. Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require.
6.13. Ownership of Documents. All findings, reports, documents, information and data including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from City’s use of such documents for other projects not contemplated by this Agreement or use of incomplete documents ATTACHMENT 2
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furnished by Consultant. Consultant shall deliver to City any findings, reports, documents, information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City.
6.14. Public Records Act Disclosure. Consultant has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code section 6250 et seq .).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
6.15. Conflict of Interest. Consultant and its officers, employees, associates and subconsultants, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code sections 81000, et seq.) and Government Code section 1090.
During the term of this Agreement, Consultant and its officers, employees, associates and subconsultants shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subconsultants to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
6.16. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant occurs, then Consultant shall, at no cost to City, provide all necessary design drawings, estimates and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction.
6.17. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect.
6.18. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
6.19. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
6.20. Binding Effect. This Agreement binds and benefits the parties and their respective ATTACHMENT 2
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permitted successors and assigns.
6.21. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
6.22. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
6.23. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement and have had an adequate opportunity to review each and every provision of the Agreement and submit the same to counsel or other consultants for review and comment. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.24. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.
6.25. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.26. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith negotiations.
6.27. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
6.28. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this Agreement.
6.29. Executive Order N-6-22 Russia Sanctions. On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the ATTACHMENT 2
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U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. This Executive order extends to recipients of any State Grants (Grantee).
Grantees include those who have contracted or will contract to receive State grants funds.
Accordingly, should the State determine that a Grantee is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this agreement. The State shall provide the Grantee advance written notice of such termination, allowing the Grantee at least 30 calendar days to provide a written response.
Termination of any contract found to be in violation of this Executive Order shall be at the sole discretion of the State.
[Signatures appear on following page.]
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IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written.
CONSULTANT
__________________________________ Date: __________________________ Scott Rice
President
CITY OF COSTA MESA
__________________________________ Date: __________________________ Lori Ann Farrell Harrison
City Manager
ATTEST:
__________________________________
Brenda Green
City Clerk
APPROVED AS TO FORM:
__________________________________ Date: __________________________ Kimberly Hall Barlow
City Attorney
APPROVED AS TO INSURANCE:
__________________________________ Date: __________________________ Ruth Wang
Risk Management
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APPROVED AS TO CONTENT:
__________________________________ Date: __________________________ Irina Gurovich
Project Manager
DEPARTMENTAL APPROVAL:
__________________________________ Date: __________________________ Raja Sethuraman
Public Works Director
APPROVED AS TO PURCHASING:
__________________________________ Date: __________________________ Carol Molina
Finance Director
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EXHIBIT A
CITY’S REQUEST FOR PROPOSALS
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REQUEST FOR PROPOSAL
FOR
ENGINEERING DESIGN SERVICES FOR THE EXPANSION OF SHALIMAR PARK, 782 SHALIMAR DRIVE, COSTA MESA
RFP NO. 23-08D
PUBLIC WORKS DEPARTMENT
CITY OF COSTA MESA
Released on September 5, 2023
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REQUEST FOR PROPOSAL
FOR
ENGINEERING DESIGN SERVICES FOR THE EXPANSION OF SHALIMAR PARK
The City of Costa Mesa (hereinafter referred to as the “City”) is requesting Proposals from qualified consultants for engineering design services for the Public Works Department. The awarded Contractor, (hereinafter referred to as “Contractor”) shall be in accordance with the Sample Professional Service Agreement, Appendix B terms, conditions, and scope of work. Prior to submitting a Proposal, Proposers are advised to carefully read the instructions below, including the Sample Professional Service Agreement and any solicitation appendix/exhibits. The schedule for the design phase is anticipated to be six months; however, the term is expected to be for 2 years with 2, one-year renewal options. The City reserves the right to award one or more contracts for this service.
I. GENERAL INFORMATION
The City of Costa Mesa is a general law city, which operates under the council/manager form of government.
The City of Costa Mesa, incorporated in 1953, has an estimated population of 115,000 and has a land area of 16.8 square miles. It is located in the northern coastal area of Orange County, California, and is bordered by the cities of Santa Ana, Newport Beach, Huntington Beach, Fountain Valley and Irvine.
The City is a “full service city” providing a wide range of services. These services include: police and fire protection; animal control; emergency medical aid; building safety regulation and inspection; street lighting; land use planning and zoning; housing and community development; maintenance and improvement of streets and related structures; traffic safety maintenance and improvement; and full range of recreational and cultural programs.
The City of Costa Mesa is home of the Segerstrom Center for the Arts, Orange County Fairgrounds, South Coast Repertory Theater and South Coast Plaza, which is the single largest commercial activity center in the City. The volume of sales generated by South Coast Plaza secures its place as the highest volume regional shopping center in the nation.
The successful Proposer, shall have experience in similar types of services. All Proposers responding to this Request for Proposal (RFP) will be evaluated on the basis of their expertise, prior experience on similar projects, demonstrated competence, ability to meet the requested services, adequate staffing, reference check, understanding of services, cost and responsiveness to the needs and concerns of the City of Costa Mesa.
1. Important Notice: The City has attempted to provide all information available. It is the responsibility of each Proposer to review, evaluate, and, where necessary, request any clarification prior to submission of a Proposal. Proposers are not to contact other City personnel with any questions or clarifications concerning this Request for Proposal (RFP). The City’s Purchasing Department contact set out in RFP, Section II, Subsection 2, Inquires, will provide all official communication concerning this RFP. Any City response relevant to this RFP other than through or approved by City’s Public Works Department is unauthorized and will be considered invalid.
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If clarification or interpretation of this solicitation is considered necessary by City, a written addendum shall be issued and the information will be posted on PlanetBids. Any interpretation of, or correction to, this solicitation will be made only by addendum issued by the City’s Public Works Department. It is the responsibility of each Proposer to periodically check PlanetBids website to ensure that it has received and reviewed any and all addenda to this solicitation. The City will not be responsible for any other explanations, corrections to, or interpretations of the documents, including any oral information.
2. Schedule of Events: This Request For Proposal shall be governed by the following schedule:
RFP Issued September 5, 2023
None Mandatory Job-Walk Meeting September 25, 2023 at 11:00 a.m.
Deadline for Written Questions October 4, 2023
Proposal Received by City October 12, 2023 at 2:00 p.m.
Contract Approval January 2024
**All dates are subject to change at the discretion of the City.
3. Proposer’s Minimum Requirements: Interested and qualified Proposers that can demonstrate their ability to successfully provide the required services outlined in Appendix A, Scope of Services, of this RFP are invited to submit a proposal, provided they meet the following requirements. All requirements must be met at the time of the proposal due date. If these requirements are not met, the proposal may not receive further consideration, as determined in the sole discretion of the City.
a) The Consultant shall identify key project staff including sub-consultants that must have at least five (5) years of prior experience on similar types of projects. All Consultants responding to this Request for Proposals (RFP) will be evaluated on the basis of their expertise, prior experience on similar projects, demonstrated competence, ability to meet the project schedule, adequate staffing, understanding of the project, and responsiveness to the needs and concerns of the City of Costa Mesa and its residents. b) The Contractor shall maintain a local office with a competent representative who can be reached during normal working hours or emergencies who is authorized to make decisions on matters pertaining to this contract with the City. Office facilities that support daily operations must be within ninety (90) miles of the City.
4. All Proposers must identify the project manager, and the individual authorized to negotiate the contract on behalf of the consulting firm; and provide an organization chart showing all proposed key project team members and a staffing plan identifying responsibilities of personnel on this project and experience on other recent similar projects.
II. GENERAL INSTRUCTIONS AND PROVISIONS
1. Proposal Format Guidelines: Interested entities or contractors are to provide the City of Costa Mesa with a thorough Proposal using the following guidelines: Proposal should be typed and should contain no more than 20 typed pages using a 12-point font size, including transmittal letter and resumes of key people, but excluding Index/Table of Contents, tables, charts, graphic exhibits and pricing forms. Each Proposal will adhere to the following order and content of sections. Proposal should be straightforward, concise and provide “layman” explanations of technical terms that are used. Emphasis should be concentrated on conforming to the RFP ATTACHMENT 2
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instructions, responding to the RFP requirements, and on providing a complete and clear description of the offer. Proposals which appear unrealistic in terms of technical commitments, lack of technical competence or are indicative of failure to comprehend the complexity and risk of this contract may be rejected. The following Proposal sections are to be included in the Proposer’s response:
Cover Letter: A cover letter, not to exceed two pages in length, should summarize key elements of the Proposal. An individual authorized to bind the Contractor must sign the letter. Indicate the address and telephone number of the contractor’s office located nearest to Costa Mesa, California, and the office from which the project will be managed. And include proposed working relationship among the offering agency and subcontractors, if applicable.
Background and Project Summary Section: The Background and Project Summary Section should describe your understanding of the City, the work to be done, and the objectives to be accomplished. Refer to Scope of Services, Appendix A of this RFP.
Project Approach & Methodology: Provide a detailed description of the approach and methodology that will be used to fulfill each requirement listed in the Scope of Services of this RFP. The section should include:
1. Descibes familiarity of project and demonstrates understanding of work and project objectives moving forward.
2. Identifies the project’s potential issues and response to them. Qualifications, Organization & Key Staff Experience : Describe the qualifications and experience of the organization or entity performing services/projects within the past five (5) years that are similar in size and scope to demonstrate competence to perform these services. Information shall include:
1. Relevant experience, specific qualifications, and technical expertise of the firm and sub-consultants to provide design services.
2. Proposes adequate and appropriate disciplines of project team.
3. Proposed team members, as demonstrated by enclosed resumes, have relevant experience for their role in the project.
4. Overall organization of the team is relevant to City of Costa Mesa needs.
5. Team is managed by an individual with appropriate experience in similar project. This person’s time is appropriately committed to this project.
6. Team structure provides adequate capability to perform both volume and quality of needed work within project schedule milestones.
7. Proposer has a system or process for managing cost and budget. Scope of Services to be Provided:
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1. Proposed scope of services is appropriate for phases of the work.
2. Scope address all known project needs and appears achievable in the timeframes set forth in the project schedule.
3. Deliverables are appropriate to schedule and addresses all items in the scope set forth in the above requirements.
Experience & Record of Success on Similar Projects:
1. Proposer has completed similar types of projects and worked consecutively through the design stages from preliminary design to final design.
Financial Capacity: The City is concerned about proposers’ financial capability to perform, and therefore, may request sufficient data to allow an evaluation of firm’s financial capabilities.
Fee Schedule: Provide a fee schedule/pricing information for the project as referenced in Appendix B, Fee Schedule. Proposals shall be valid for a minimum of 180 days following submission. All Proposers are required to use Appendix B, Fee Schedule and submit in a separate file.
Disclosure: Please disclose any and all past or current business and personal relationships with any current Costa Mesa elected official, appointed official, City employee, or family member of any current Costa Mesa elected official, appointed official, or City employee. Any past or current business relationship may not disqualify the firm from consideration.
Professional Services Agreement: The firm selected by the City will be required to execute a Professional Services Agreement with the City. A sample of the Agreement is enclosed as Appendix C, but may be modified to suit the specific services and needs of the City. If a Proposer has any exceptions or conditions to the Agreement, these must be submitted for consideration with the Proposal. Otherwise, the Proposer will be deemed to have accepted the form of Agreement.
Checklist of Forms to Accompany Proposal: As a convenience to Proposers, following is a list of the forms, Appendix D included in this RFP, which should be included with Proposals:
1. Vendor Application Form
2. Company Profile & References
3. Ex Parte Communications Certificate
4. Disclosure of Government Positions
5. Disqualifications Questionnaire
6. Bidder/Applicant/Contractor Campaign Contribution
2. Process for Submitting Proposals:
Content of Proposal: The Proposal must be submitted using the format as indicated in the Proposal format guidelines.
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Preparation of Proposal: Each Proposal shall be prepared simply and economically, avoiding the use of elaborate promotional material beyond those sufficient to provide a complete, accurate and reliable presentation.
Cost for Preparing Proposal: The cost for developing the Proposal is the sole responsibility of the Proposer. All Proposals submitted become the property of the City. Fee Schedule shall be submitted in a separate file containing the following:
Cover letter stating the total not to exceed cost.
Forms to Accompany Proposal: Appendix D forms shall be attached at the end of the Proposal with the exception of the Fee Schedule which shall be submitted in a separate file.
Number of Proposals: Submit one (1) PDF file format copy of your proposal in sufficient detail for thorough evaluation and comparative analysis.
Submission of Proposals: Complete written Proposals must be submitted electronically in PDF file format via the planetbids.com website no later than 2:00 p.m. (P.D.T) on October 12, 2022 . Proposals will not be accepted after this deadline. Proposals received after the scheduled closing time will not be accepted. It shall be the sole responsibility of the Proposer to see that the proposal is received in proper time. Faxed or e-mailed Proposals will not be accepted. NO EXCEPTIONS.
Inquiries: Questions about this RFP must be posted in the Q & A tab on Planetbids no later than October 4, 2023 at 11:00 a.m. The City reserves the right not to answer all questions.
The City reserves the right to amend or supplement this RFP prior to the Proposal due date.
All addendum(s), responses to questions received, and additional information will be posted to PlanetBids. Proposers should check this web page daily for new information.
From the date that this RFP is issued until a firm or entity is selected and the selection is announced, firms or public entities are not allowed to communicate outside the process set forth in this RFP with any City employee other than the contracting officer listed above regarding this RFP. The City reserves the right to reject any Proposal for violation of this provision. No questions other than posted on Planetbids will be accepted, and no response other than written will be binding upon the City.
Conditions for Proposal Acceptance: This RFP does not commit the City to award a contract or to pay any costs incurred for any services. The City, at its sole discretion, reserves the right to accept or reject any or all Proposals received as a result of this RFP, to negotiate with any qualified source(s), or to cancel this RFP in part or in its entirety. The City may waive any irregularity in any Proposal. All Proposals will become the property of the City of Costa Mesa, USA. If any proprietary information is contained in the Proposal, it should be clearly identified.
Insurance & W-9 Requirements: Upon recommendation of contract award, Contractor will be required to submit the following documents with ten (10) days of City notification, unless otherwise specified in the solicitation:
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Insurance - City requires that licensees, lessees, and vendors have an approved Certificate of Insurance (not a declaration or policy) or proof of legal self-insurance on file with the City for the issuance of a permit or contract. Within ten (10) consecutive calendar days of award of contract, successful Bidder must furnish the City with the Certificates of Insurance proving coverage as specified in the sample contract.
W-9 – Current signed form W-9 (Taxpayer Identification Umber & Certification) which includes Contractor’s legal business name(s).
3. Evaluation Criteria: The City’s evaluation and selection process will be conducted in accordance with Chapter V, Article 2 of the City's Municipal Code (Code). In accordance with the Code, the responsive responsible proposer shall be determined based on evaluation of qualitative factors in addition to cost. At all times during the evaluation process, the following criteria will be used. Sub-criteria are not necessarily listed in order of importance. Additional sub- criteria that logically fit within a particular evaluation criteria may also be considered even if not specified below.
1. Project Approach, Scope, & Methodology ------- 20%
2. Qualifications, Organization & Key Staff Experience------- 40%
3. Experience and Record of Success on Similar Projects --- 30%
4. Cost Effectiveness ---- 10%
4. Evaluation of Proposals and Selection Process: In accordance with its Municipal Code, the City will adhere to the following procedures in evaluating Proposals. An Evaluation Committee, which may include members of the City's staff and possibly one or more outside experts, will screen and review all Proposals according to the weighted criteria set forth above.
While price is one basic factor for award, it is not the sole consideration.
A. Responsiveness Screening : Proposals will first be screened to ensure responsiveness to the RFP. The City may reject as non-responsive any Proposal that does not include the documents required to be submitted by this RFP. At any time during the evaluation process, the City reserves the right to request clarifications or additional information from any or all Proposers regarding their Proposals.
B. Initial Proposal Review: The Committee will initially review and score all responsive written Proposals based upon the Evaluation Criteria set forth above. The Committee may also contact Proposer's references. Proposals that receive the highest evaluation scores may be invited to the next stage of the evaluation process. The City may reject any Proposal in which a Proposer’s approach, qualifications, or price is not considered acceptable by the City. An unacceptable Proposal is one that would have to be substantially rewritten to make it acceptable. The City may conclude the evaluation process at this point and recommend award to the lowest responsible bidder. Alternatively, the City may elect to negotiate directly with one or more Proposers to obtain the best result for the City prior to making a recommendation or selection.
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C. Interviews, Reference Checks, Revised Proposals, Discussions: Following the initial screening and review of Proposals, the Proposers included in this stage of the evaluation process may be invited to participate in an oral interview. Interviews, if held, are tentatively scheduled for the week of October 30, 2023. This date is subject to change. The individual(s) from Proposer's organization that will be directly responsible for carrying out the contract, if awarded, should be present at the oral interview. The oral interview may, but is not required to, use a written question/answer format for the purpose of clarifying the intent of any portions of the Proposal.
In addition to conducting an oral interview, the City may during this stage of the evaluation process also contact and evaluate the Proposer’s references, contact any Proposer to clarify any response or request revised or additional information, contact any current users of a Proposer’s services, solicit information from any available source concerning any aspect of a Proposal, and seek and review any other information deemed pertinent to the evaluation process.
Following conclusion of this stage of the evaluation process, the Committee will again rank all Proposers according to the evaluation criteria set forth above. The Committee may conclude the evaluation process at this point, and make a recommendation for award, or it may request Best and Final Offers from Proposers. The City may accept the Proposal or negotiate the terms and conditions of the agreement with the highest ranked organization. The City may recommend award without Best and Final Offers, so Proposers should include their best Proposal with their initial submission.
Recommendation for award is contingent upon the successful negotiation of final contract terms. Negotiations shall be confidential and not subject to disclosure to competing Proposers unless an agreement is reached. If contract negotiations cannot be concluded successfully within a time period determined by the City, the City may terminate negotiations and commence negotiations with the next highest scoring Proposer or withdraw the RFP.
5. Protests: Failure to comply with the rules set forth herein may result in rejection of the protest.
Protests based upon restrictive specifications or alleged improprieties in the Proposal procedure, which are apparent or reasonably should have been discovered prior to receipt of Proposals shall be filed in writing with the City’s Purchasing Department at least 10 calendar days prior to the deadline for receipt of Proposals. The protest must clearly specify in writing the grounds and evidence on which the protest is based.
Protests based upon alleged improprieties that are not apparent or that could not reasonably have been discovered prior to submission date of the Proposals, such as disputes over the staff recommendation for contract award, shall be submitted in writing to the City’s Purchasing Department, within 48 hours from receipt of the notice from the City advising of City’s recommendation for award of contract. The protest must clearly specify in writing the grounds and evidence on which the protest is based. The City’s Purchasing Department will respond to the protest in writing at least 3 days prior to the meeting at which City’s recommendation to the City Council will be considered. Should Proposer decide to appeal the response of the City’s Purchasing Department, and pursue its protest at the Council meeting, it will notify the City’s Purchasing Department of its intention at least 2 days prior to the scheduled meeting.
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A. Procedure – All protests shall be typed under the protester’s letterhead and submitted in accordance with the provisions stated herein. All protests shall include at a minimum the following information:
• The name, address and telephone number of the protester; • The signature of the protester or the protester’s representative; • The solicitation or contract number;
• A detailed statement of the legal and/or factual grounds for the protest; and • The form of relief requested.
6. Accuracy of Proposals: Proposers shall take all responsibility for any errors or omissions in their Proposals. Any discrepancies in numbers or calculations shall be interpreted to reflect the cost to the City.
If prior to contract award, a Proposer discovers a mistake in their Proposal which renders the Proposal unwilling to perform under any resulting contract, the Proposer must immediately notify the facilitator and request to withdraw the Proposal. It shall be solely within the City's discretion as to whether withdrawal will be permitted. If the solicitation contemplated evaluation and award of "all or none" of the items, then any withdrawal must be for the entire Proposal. If the solicitation provided for evaluation and award on a line item or combination of items basis, the City may consider permitting withdrawal of specific line item(s) or combination of items.
7. Responsibility of Proposers: The City shall not be liable for any expenses incurred by potential Contractors in the preparation or submission of their Proposals. Pre-contractual expenses are not to be included in the Contractor’s Pricing Sheet. Pre-contractual expenses are defined as, including but not limited to, expenses incurred by Proposer in:
Preparing Proposal in response to this RFP;
Submitting that Proposal to the City;
Negotiating with the City any matter related to the Proposal; and, Any other expenses incurred by the Proposer prior to the date of the award and execution, if any, of the contract.
8. Confidentiality: The California Public Records Act (Cal. Govt. Code Sections 6250 et seq.) mandates public access to government records. Therefore, unless information is exempt from disclosure by law, the content of any request for explanation, exception, or substitution, response to this RFP, protest, or any other written communication between the City and Proposer, shall be available to the public. The City intends to release all public portions of the Proposals following the evaluation process at such time as a recommendation is made to the City Council.
If Proposer believes any communication contains trade secrets or other proprietary information that the Proposer believes would cause substantial injury to the Proposer’s competitive position if disclosed, the Proposer shall request that the City withhold from disclosure the proprietary information by marking each page containing such proprietary information as confidential.
Proposer may not designate its entire Proposal as confidential nor designate its Price Proposal as confidential.
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Submission of a Proposal shall indicate that, if Proposer requests that the City withhold from disclosure information identified as confidential, and the City complies with the Proposer’s request, Proposer shall assume all responsibility for any challenges resulting from the non- disclosure, indemnify and hold harmless the City from and against all damages (including but not limited to attorney’s fees and costs that may be awarded to the party requesting the Proposer information), and pay any and all costs and expenses related to the withholding of Proposer information. Proposer shall not make a claim, sue, or maintain any legal action against the City or its directors, officers, employees, or agents concerning the disclosure, or withholding from disclosure, of any Proposer information. If Proposer does not request that the City withhold from disclosure information identified as confidential, the City shall have no obligation to withhold the information from disclosure and may release the information sought without any liability to the City.
9. Ex Parte Communications: Proposers and Proposers’ representatives should not communicate with the City Council members about this RFP. In addition, Proposers and Proposers’ representatives should not communicate outside the procedures set forth in this RFP with an officer, employee or agent of the City, including any member of the evaluation panel, with the exception of the RFP Facilitator, regarding this RFP until after Contract Award.
Proposers and their representatives are not prohibited, however, from making oral statements or presentations in public to one or more representatives of the City during a public meeting.
A "Proposer" or "Proposer's representative" includes all of the Proposer's employees, officers, directors, consultants and agents, any subcontractors or suppliers listed in the Proposer's Proposal, and any individual or entity who has been requested by the Proposer to contact the City on the Proposer's behalf. Proposers shall include the Ex Parte Communications Form, Appendix D with their Proposals certifying that they have not had or directed prohibited communications as described in this section.
10. Conflict of Interest: The Proposer warrants and represents that it presently has no interest and agrees that it will not acquire any interest which would present a conflict of interest under California Government Code Sections 1090 et seq., or Sections 87100 et seq., during the performance of services under any Agreement awarded. The Proposer further covenants that it will not knowingly employ any person having such an interest in the performance of any Agreement awarded. Violation of this provision may result in any Agreement awarded being deemed void and unenforceable.
11. Disclosure of Governmental Position : In order to analyze possible conflicts that might prevent a Proposer from acting on behalf of the City, the City requires that all Proposers disclose in their Proposals any positions that they hold as directors, officers, or employees of any governmental entity. Additional disclosure may be required prior to contract award or during the term of the contract. Each Proposer shall disclose whether any owner or employee of the firm currently hold positions as elected or appointed officials, directors, officers, or employees of a governmental entity or held such positions in the past twelve months using the attached Disclosure of Government Positions Form, Appendix D.
12. Conditions to Agreement: The selected Proposer will execute a Professional Service Agreement for Services with the City describing the Scope of Services to be performed, the schedule for completion of the services, compensation, and other pertinent provisions. The ATTACHMENT 2
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contract shall follow the sample form of Agreement provided as Appendix C to this RFP, which may be modified by the City.
All Proposers are directed to particularly review the indemnification and insurance requirements set forth in the sample Agreement. The terms of the agreement, including insurance requirements have been mandated by the City and can be modified only if extraordinary circumstances exist.
Submittal of a Proposal shall be deemed acceptance of all the terms set forth in this RFP and the sample agreement for services unless the Proposer includes with its Proposal, in writing, any conditions or exceptions requested by the Proposer to the proposed Agreement.
13. Disqualification Questionnaire: Proposers shall complete and submit, under penalty of perjury, a standard form of questionnaire inquiring whether a Proposer, any officer of a proposer, or any employee of a Proposer who has a proprietary interest in the Proposer, has ever been disqualified, removed, or otherwise prevented from proposing on, or completing a federal, state, or local government project because of a violation of law or safety regulation and if so, to explain the circumstances. A Proposal may be rejected on the basis of a Proposer, any officer or employee of such Proposer, having been disqualified, removed, or otherwise prevented from proposing on, or completing a federal, state, or local project because of a violation of law or a safety regulation, Appendix D.
14. Standard Terms and Conditions: The City reserves the right to amend or supplement this RFP prior to the Proposal due date. All addendum(s) and additional information will be posted to Planetbids. Proposers should check this web page daily for new information.
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APPENDIX A
SCOPE OF WORK
REQUEST FOR PROPOSALS FOR PROFESSIONAL SERVICES FOR THE DESIGN OF THE EXPANSION OF SHALIMAR PARK (782 SHALIMAR DRIVE, COSTA MESA)
I. INTRODUCTION
Shalimar Park is a small pocket park located at 782 Shalimar Drive. The existing park of approximately
0.18 acres, currently includes a playground featuring elements for 2-12 year old children, seating area and benches a concrete open area towards the rear of the park.
The City desires to retain the services of a highly-qualified firm with a specialty in park development to provide design services for improvements and expansion of Shalimar Park. The park can be expanded by narrowing Shalimar Street to approximately 24-feet to accommodate for two-way traffic and incorporating the additional space in the park. In addition, there could be opportunities to all play elements to the adjacent street cul-de-sac.
In addition, the preliminary park design options were discussed with the City’s Parks and Recreation Commission at their meeting of August 10, 2023. The recording of the meeting is available on City website.
The selected Consultant team must possess a strong background in urban park planning and design.
It is anticipated that the Consultant will be responsible for hosting community meetings, preparing conceptual and schematic designs based on the preliminary renderings, preparing budget level estimates, and conducting public presentations. Following selection of project concept, the consultant will prepare final design plan and specifications for the project and be available for construction support.
A. General Goals:
The City of Costa Mesa desires to retain the services of a consultant to plan and design the expansion of Shalimar Park.
The goals for the project are as follows:
1. Evaluate the park in order to determine exciting and innovative play elements for the expansion.
2. Conduct public workshops, progress meetings with stakeholders, and presentations to the Parks and Community Services Commission and City Council.
3. Develop the project in partnership local residents, and various City departments.
4. Develop all schematic designs for the expansion, including:
New play elements
Features such as picnic shelter, seating areas
Enhanced landscaping protecting as many mature trees as possible A state-of-the-art lighting system
Fencing improvements
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The selected consultant will be responsible for the completion of the final design of Shalimar Park expansion, including the processing of all required permits.
B. Minimum Consultant Qualifications:
The Consultant shall identify key project staff including sub-consultants that must have at least five (5) years of prior experience on similar types of projects. All Consultants responding to this Request for Proposals (RFP) will be evaluated on the basis of their expertise, prior experience on similar projects, demonstrated competence, ability to meet the project schedule, adequate staffing, understanding of the project, and responsiveness to the needs and concerns of the City of Costa Mesa and its residents.
II. CONTENT OF PROPOSAL
In order to maintain uniformity with all proposals furnished by consultants, the proposals shall be limited to a maximum of 20 pages (excluding front and back covers, section dividers, and resumes) and to include the following:
A. A statement of project understanding containing any suggestions to improve or expedite the project or special concerns of which the City should be made aware. The project approach shall contain clarifications or additional scope of work necessary for the successful completion of the project.
B. A project team organization chart, identifying those who will perform the work, and a brief resume of each team member (including a list of similar type projects in which they have been directly involved) is required. Identify the Project Manager (PM) proposed for this project. The PM will be the primary contact person to represent your firm and will be the person to conduct the presentation, if invited for an interview. Sub-consultants, if any, shall be identified with the same requirements as the main consultant.
C. A list of similar projects that your firm has completed within the last five years. Information should include: project description, agency or client name, along with the person to contact and the telephone number(s), year completed, and project cost.
D. A proposed schedule indicating stages of work, timeframes, and ability to perform the required services in a timely manner with a construction start date of June 2024.
E. Fee proposal in a separately sealed envelope containing the following:
1. Cover letter stating the total lump sum fee.
2. A spreadsheet with a detailed fee schedule of the proposed costs. Each fee schedule shall list individual project tasks and number of hours assigned for specific personnel, along with their basic hourly rates. The specific hourly rates shall include direct salary costs, employee benefits, overhead, and profit. Travel time will not be allowed. The fee proposal shall reflect all anticipated fee increases during the contract duration.
A None – Mandatory pre-proposal meeting and walk-through will be held on September 25, 2023, 11:00 a.m. at Shalimar Park located at 782 Shalimar Drive. All prospective bidders are strongly encouraged to attend this meeting. All prospective bidders are strongly encouraged to attend this meeting.
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III. CONSULTANT SELECTION COMMITTEE
The City of Costa Mesa Public Works Department has established a Consultant Selection Committee consisting of three members who have acted in the capacity of Project Manager. The Consultant Selection Committee will evaluate the consultant on their ability to do the following:
A. Produce a well-engineered set of plans, specifications and estimates (PS&E) that will result in a minimum number of construction contract change orders.
B. Produce an innovative and detailed set of construction documents, which reflect field conditions, including drainage and utility locations.
C. Perform constructability and value engineering during the design process to anticipate, as much as possible, potential construction problems.
D. Provide the City with adequate estimates, quantity takeoffs, detailed drawings, etc., to allow for effective construction management and quality control of the project.
IV. ESTABLISHMENT OF FEES
The fee proposal will not be opened until the Proposal Selection Committee has evaluated all of the Consultants’ proposals. In conformance with the Mini-Brooks Act, the City will select the Consultant based on qualifications, and then negotiate a contract price based on available funding and a further breakdown of the “lump sum” fee submitted in the fee proposal.
Fee submitted shall include presentations at three community outreach meetings, one presentation to the Parks and Community Services Commission, one presentation to the Planning Commission, and one presentation to the City Council. These presentations may be outside of normal business hours and/or on weekends.
Consultant shall include an allowance line item in the fee proposal in the amount of $10,000 for reimbursable expenses such as exhibits requested for community presentations and any utility agency fees. In addition, the consultant is requested to include an amount of $10,000 in the fee schedule for the Design of Shalimar Park Expansion as a contingency to be used only as directed in writing by the City’s Project Manager.
V. PROFESSIONAL SERVICES AGREEMENT
A. A sample of the required Professional Services Agreement is enclosed for your information (Exhibit C). The RFP and the consultant’s proposal will be attached to and become part of the executed agreement as exhibits.
B. No reduction of professional services, as stated in both the City’s RFP and the consultant’s submitted proposal, will be allowed.
VI. INSURANCE REQUIREMENTS
A Certificate of Insurance is enclosed for your reference (Exhibit D). Please refer to the sample agreement for the necessary amounts of general liability insurance, automotive, worker’s ATTACHMENT 2
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compensation, and professional liability insurance. The appropriate endorsements are also shown within the sample contract agreement.
VII. SCOPE OF CONSULTANT SERVICES
The scope of the work includes developing preliminary 3D concepts, conducting public workshops, coordinating with the community, making presentations to Commissions and the City Council, and completing the final design for the selected concept. The work also includes identifying and designing supporting/ancillary facilities such as viewing areas, covered picnic shelters and bleachers, parking lot, etc.
A. Project Analysis and Review:
The Consultant will evaluate existing conditions, research existing City plans and records, perform field review and investigations, meet with City staff to define the detailed project scope and objectives (minimum four meetings), and ultimately implement the General Goals identified for this project. The Consultant will meet periodically with City staff and other advisory groups for appropriate guidance and coordination and determine the appropriate courses of action for obtaining feedback from the community. The Consultant will be required to conduct two community outreach meetings, and in addition, make public presentations before the Parks and Community Services Commission and the City Council. The Consultant shall take notes during the public presentations and workshop meetings and prepare meeting minutes that shall be submitted to City staff for approval within one week after the meeting.
B. Utility Investigation/Coordination:
The consultant shall notify all the utility companies; obtain plans of all existing utility facilities; and identify and precisely locate all utilities (both underground and overhead) within the project limits, including mains, service lines, meter boxes, valve cans, irrigation lines, drain lines, channels, traffic signal conduit, etc.
The consultant must coordinate all work with the respective utility companies to determine locations and depths of facilities for design purposes; request utility companies to pothole their facilities as required to obtain precise elevations of existing utilities; determine elevations of exposed existing utility facilities; determine where interferences with existing facilities will occur as a result of the construction of this project and resolve any conflicts with utility companies.
The consultant shall obtain approval in writing from utility companies for any necessary utility work and clearance. The consultant shall comply with the City of Costa Mesa’s “Utility Coordination Procedures.”
The consultant shall submit all utility correspondences to the City.
B. Survey:
The Consultant shall plot the project schematic design conducting aerials and topographic surveys to provide the necessary information to complete the schematic design for the project.
The consultant shall plot the project design survey referencing all elevations to the closest and latest Orange County Benchmark (OCBM) which shall be identified and described on the ATTACHMENT 2
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drawings; provide centerline bearings with the basis of bearing referenced to a bearing on a latest recorded tract or parcel map nearest to the proposed site; and provide stations that shall be based upon and begun at nearest existing street centerline stations.
The consultant shall provide the following minimum survey information:
1. Obtain permission from all the landowners where topographic surveying is needed.
2. Perform a topographic survey and prepare a base map. The base map shall identify existing structures, utilities, roadways, trails, trees, etc., and other existing improvements within the project limits.
3. Provide typical cross-sections with existing elevations.
4. Show property lines and address numbers (50% screened), including City and County boundaries.
5. Show contour lines within the limits of the work and to 100-feet (minimum) beyond the grading limits to establish existing drainage patterns.
6. Attention to detail is essential. All existing improvements and features must be described and detailed on the plans.
Deliverables:
1. Progress prints and final survey plan, stamped by a licensed surveyor.
2. CD containing all pertinent electronic files (ACAD files including cross references and fonts, survey data, etc.)
C. Plans (Schematic Design Phase):
1. Prepare initial 3D concept plans based on staff meetings and surveys for use in public workshops and meetings with stakeholders. Direction will be given at these meetings to finalize one recommended concept plan and one alternate concept plan prior to the scheduled public presentations (Parks and Community Service Commission, Planning Commission, and City Council).
2. Final concept plans must show the following levels of detail:
Site plan showing the entire park
Layout of the proposed park features
Details (sections, plan and profile, materials, etc.) of Individual elements (playground equipment, picnic shelter, landscaping fencing options, etc.)
3-D (or Isometric) color renderings of proposed park and elements
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3. Prepare preliminary construction cost estimates for the options being presented.
D. Geotechnical Investigation:
The selected consultant will be required to conduct all the necessary geotechnical investigations to completely design the project.
E. Electrical Engineering Services:
The design of the new safety lighting systems will require the services of a licensed electrical engineer who must coordinate the work and obtain permits from Southern California Edison and the City’s Building Division.
F. Plans:
i. The consultant shall prepare construction drawings containing title sheet, general note sheet, plan sheets, typical cross section sheets, and detail sheets for the project. The title sheet shall contain a vicinity map and location map for the project. ii. The consultant shall plot typical cross sections illustrating existing and proposed conditions.
The typical cross sections shall include existing and proposed elevations, stations, percent cross slopes, labeling, other information as outlined in the above Design Survey Section, and other required information.
iii. The consultant shall plot existing improvements in broken or screened lines and place existing elevations in parenthesis.
iv. The consultant shall incorporate the following minimum information on plan views: ROW, property lines, existing AC and PCC improvements, and all existing structures (power poles, storm channels, fences, trees, plants, grass, walkways, pull boxes, and sprinkler systems).
G. Specifications:
Prepare complete project specifications including Special Provisions (including permits from other agencies) and Proposal forms in a format consistent with current City projects. Copies of Standard General Provisions and Construction Contract Agreement will be supplied by the City for incorporation into construction documents. A description for each bid item will be required.
H. Quantity and Cost Estimates:
Provide complete preliminary and final construction quantity and cost estimates for each one of the proposed phases. A preliminary estimate shall be provided at 70% and 100% complete submittals and a final estimate upon final submittal. With the final submittal, color-code one set of blue lines showing one color for each item of construction with dimensions, areas, quantities, and other items for each sheet, showing total quantities for each item on the first sheet. These quantities shall match the proposed final quantities. In addition, quantity takeoff sheets shall be provided by the consultant to aid the City during construction.
I. Construction Documents:
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Plans and specifications shall comply with standard drawings and specifications of the City of Costa Mesa and other agencies as applicable.
All construction drawings shall be provided to the City in both hard copy and electronic format.
Prepare one Resident Engineer’s file. The file must contain a minimum of the following:
preliminary and final construction quantities and cost estimates and updates, quantity takeoff sheets, calculation documents, fieldwork information, meeting minutes, utility coordination correspondence, geotechnical documents, survey and ROW information, and all other related correspondence. The consultant shall submit this file to the City in conjunction with the final submittal.
J. Project Document Submittal and Plan Information:
i. Project Initialization and General Requirements:
a. Develop Project Schedule and Staffing Requirements.
b. Locate electrical and irrigation POC’s and initiate contact with the respective owners. c. Submit Monthly Progress Reports to the City.
d. Participate in Periodic Meetings with City staff.
e. Provide presentation to Parks and Recreation Commission outside of normal business hours
f. Host neighborhood community meeting outside of normal business hours g. Provide three-dimensional computer renderings of proposed improvements at 30%, 60%, 90% and 100% completion.
h. All required City-issued permits will be provided for free of charge for the design and construction of the project.
i. Any other permits required for the project shall be obtained by the CONSULTANT. City will pay any fees to the respective agencies. j. Areas disturbed during the design and construction phases of this project must be restored to pre-existing conditions according to the City’s requirements. k. Fieldwork will be conducted Monday through Friday from 7:00 a.m. to 5:00 p.m. or as authorized by the City. The City shall be made aware of work conducted outside of normal hours prior to commencement of said work. No work will be conducted outside of normal hours without City approval.
l. Ensure that the project is designed and engineered to provide and maintain positive drainage flow.
m. Ensure that standing/stagnant water is avoided due to vector concerns.
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ii. Preliminary Engineering – 70% Complete PS&E’s:
a. Conduct all topographic and property surveys and combine with available topographic surveys to create of base maps for the project.
b. Conduct all geotechnical investigations necessary for the construction of the project. c. The selected CONSULTANT shall review field conditions with respect to storm drain maps and irrigation plans provided by the City and report any configuration errors or inconsistencies to the City for clarification or correction. d. Prepare Base Maps, Rough Grading Plan, proposed landscape, hardscape, irrigation and electrical improvements, including color renderings of the proposed park features and surfacing.
e. This submittal must include all the proposed improvements, construction notes and as many details as possible.
iii. Preliminary Engineering – 100% Complete PS&E’s:
a. CONSULTANT shall address any comments from the City or other agencies generated from the 70% submittal.
b. Based on the input received from the previous submittal, complete the design and prepare final PS&E’s.
c. Submit construction documents to the City of Costa Mesa Building Division and to other agencies and utility companies for review and to obtain preliminary approvals. d. Submit draft Storm Water Pollution Prevention Plan (SWPPP) and Water Quality Management Plan (WQMP) in compliance with local, state and federal requirements.
iv. Preliminary Engineering – Final PS&E’s:
a. CONSULTANT shall address any comments from the City or other agencies generated from the previous plan check.
b. Submit final set of PS&E’s (printed and electronic formats) complete with the necessary instructions and details to carry out the work in accordance with the approved construction phasing. The final set of plans shall be printed and submitted electronically with each sheet stamped and signed.
c. Submit final construction permits and approvals from City Departments, other agencies, and utility companies.
d. Submit final SWPPP and WQMP.
v. Deliverables:
The CONSULTANT shall provide the City with the following:
a. For progress plan check submittals, in addition to the printed copies submitted for this phase, all plans and reports must also be submitted in electronic format (e.g. AutoCAD, ATTACHMENT 2
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Microsoft Word, Microsoft Excel).
b. For the final construction and environmental documents, and supporting calculations, in addition to the printed copies submitted for this phase, all plans and reports must be submitted in electronic format (e.g. AutoCAD, Microsoft Word, Microsoft Excel). c. Approved permits.
K. Construction Support Services:
1. Respond to all Contractor Requests for Information
2. Review all Contractor Submittals
3. Attend weekly construction in-person progress meetings
4. Review and advise on any construction change order requests
5. Perform punch walk at the end of construction.
VIII. CITY RESPONSIBILITIES
The City of Costa Mesa will be responsible for the following:
a. Providing all available system maps, existing hardcopy plans, reports and records on file with the City.
b. A primary contact/project manager and staff liaison for the project. c. The City will assist and distribute submittals internally to various departments for review for plan check.
d. Publicity for all scheduled public meetings, including printing and signage, social media channels, website updates, and other communication channels as necessary. e. Access to all necessary facilities, including meeting rooms as necessary.
IX. ASSESSMENT OF WORK EFFORT PRIOR TO SUBMITTING REQUEST FOR PROPOSAL Each Consultant must inform themselves fully of the conditions relating to the project and the employment of labor thereon. Failure to do so will not relieve a successful Consultant engineer of the obligations to carry out the provisions of the contract.
EXHIBIT 1
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PROJECT VICINITY MAP
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APPENDIX B
FEE SCHEDULE
The professional services contract will not be awarded based upon competitive bidding. The fee schedule should show the hourly cost of personnel per task under each phase, with a total not-to exceed amount for the project. The consultant’s cost proposal for the prime and subcontractors should contain a breakdown of all cost components including labor base rate, other direct costs, overhead, and fees.
It is requested that the fee, including all meetings, reproduction, materials, mailings, and associated project expenses
NOTE: All originals of plans, field notes, data and calculations, correspondence, reports, electronic files, etc., will be turned over to the City upon completion of design. Five percent (5%) of the total contract fee will be withheld until the final PS&E, Resident Engineers File, and all project documents are submitted in acceptable form to the City.
SCHEDULE: The City anticipates a schedule of six (6) months to complete the scope of work for the project design.
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APPENDIX C
SAMPLE
PROFESSIONAL SERVICES AGREEMENT
CITY OF COSTA MESA
PROFESSIONAL SERVICES AGREEMENT
WITH
_____________________________
THIS AGREEMENT is made and entered into this __ day of _____, 20__ (“Effective Date”), by and between the CITY OF COSTA MESA, a municipal corporation (“City”), and ___________, a [state] [type of corporation] (“Consultant”).
W I T N E S S E T H :
A. WHEREAS, City proposes to utilize the services of Consultant as an independent contractor to __________________, as more fully described herein; and
B. WHEREAS, Consultant represents that it has that degree of specialized expertise contemplated within California Government Code Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and
C. WHEREAS, City and Consultant desire to contract for the specific services described in Exhibit “A” (the “Project”) and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and
D. WHEREAS, no official or employee of City has a financial interest, within the provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described in the City’s Request for Proposal (“RFP”), attached hereto as Exhibit “A,” and Consultant’s Response to City’s RFP (the “Response”) attached hereto as Exhibit “B,” both incorporated herein by this reference.
1.2. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement.
1.3. Performance to Satisfaction of City. Consultant agrees to perform all the work to the complete satisfaction of the City and within the hereinafter specified. Evaluations of the work will be done by the City Manager or his or her designee. If the quality of work is not satisfactory, City in its discretion has the right to:
(a) Meet with Consultant to review the quality of the work and resolve the matters of concern;
(b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/or ATTACHMENT 2
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(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws, including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers’ compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys’ fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant’s performance under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code.
1.6. Non-Exclusive Agreement. Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Consultant may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Consultant’s sole cost and expense.
1.8. Confidentiality. Employees of Consultant in the course of their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid in accordance with the fee schedule set forth in Exhibit “C,” attached hereto and made a part of this Agreement (the “Fee Schedule”). Consultant’s total compensation shall not exceed _______ Dollars ($ _____.00).
2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the scope of services specified in the Consultant’s Proposal unless the City or the Project Manager for this Project, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable.
2.3. Method of Billing. Consultant may submit invoices to the City for approval on a progress basis, but no more often than two times a month. Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction. City shall pay Consultant’s invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed, the date of performance, and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices.
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2.4. Records and Audits. Records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Said services shall be performed in strict compliance with the Project Schedule approved by City as set forth in Exhibit “D,” attached hereto and incorporated herein by this reference. The Project Schedule may be amended by mutual agreement of the parties. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue for a period of ______ months, ending on __________, 20__, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties.
4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Consultant. The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City.
4.3. Compensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and including the date of City’s written notice of termination. Compensation for work in progress shall be prorated based on the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant.
4.4. Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncompleted documents without specific written authorization from Consultant shall be at City's sole risk and without liability or legal expense to Consultant.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain, maintain, and keep in full force and effect during the life of this Agreement all of the following minimum scope of insurance coverages with an insurance company admitted to do business in California, rated “A,” Class X, or better in the most recent Best’s Key Insurance Rating Guide, and approved by City:
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(a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury or bodily injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or shall be twice the required occurrence limit.
(b) Business automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence for bodily injury and property damage.
(c) Workers' compensation insurance as required by the State of California. Consultant agrees to waive, and to obtain endorsements from its workers’ compensation insurer waiving subrogation rights under its workers’ compensation insurance policy against the City, its officers, agents, employees, and volunteers arising from work performed by Consultant for the City and to require each of its subcontractors, if any, to do likewise under their workers’ compensation insurance policies.
(d) Professional errors and omissions (“E&O”) liability insurance with policy limits of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. Architects’ and engineers’ coverage shall be endorsed to include contractual liability. If the policy is written as a “claims made” policy, the retro date shall be prior to the start of the contract work. Consultant shall obtain and maintain, said E&O liability insurance during the life of this Agreement and for three years after completion of the work hereunder.
5.2. Endorsements. The commercial general liability insurance policy and business automobile liability policy shall contain or be endorsed to contain the following provisions:
(a) Additional insureds: "The City of Costa Mesa and its elected and appointed boards, officers, officials, agents, employees, and volunteers are additional insureds with respect to: liability arising out of activities performed by or on behalf of the Consultant pursuant to its contract with the City; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; automobiles owned, leased, hired, or borrowed by the Consultant."
(b) Notice: "Said policy shall not terminate, be suspended, or voided, nor shall it be cancelled, nor the coverage or limits reduced, until thirty (30) days after written notice is given to City.
(c) Other insurance: "The Consultant’s insurance coverage shall be primary insurance as respects the City of Costa Mesa, its officers, officials, agents, employees, and volunteers.
Any other insurance maintained by the City of Costa Mesa shall be excess and not contributing with the insurance provided by this policy."
(d) Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City of Costa Mesa, its officers, officials, agents, employees, and volunteers.
(e) The Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
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5.3. Deductible or Self Insured Retention. If any of such policies provide for a deductible or self- insured retention to provide such coverage, the amount of such deductible or self-insured retention shall be approved in advance by City. No policy of insurance issued as to which the City is an additional insured shall contain a provision which requires that no insured except the named insured can satisfy any such deductible or self-insured retention.
5.4. Certificates of Insurance. Consultant shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. The certificates of insurance shall be attached hereto as Exhibit “E” and incorporated herein by this reference.
5.5. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations.
This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
6.2. Representatives. The City Manager or his or her designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Project Managers. City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement.
Consultant shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail.
IF TO CONSULTANT: IF TO CITY:
_________________
_________________
_________________
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Tel: _________________ Tel: (714) 754-
Fax: _________________ Fax: (714) 754-
Attn: _________________ Attn: _________________
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Provide courtesy copy to:
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Attn: Finance Department
6.5. Drug-free Workplace Policy. Consultant shall provide a drug-free workplace by complying with all provisions set forth in City’s Council Policy 100-5, attached hereto as Exhibit “F” and incorporated herein by reference. Consultant’s failure to conform to the requirements set forth in Council Policy 100-5 shall constitute a material breach of this Agreement and shall be cause for immediate termination of this Agreement by City.
6.6. Attorneys’ Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof.
6.7. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California.
6.8. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement.
6.9. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify, hold free and harmless the City, its elected officials, officers, agents and employees, at Consultant’s sole expense, from and against any and all claims, actions, suits or other legal proceedings brought against the City, its elected officials, officers, agents and employees arising out of the performance of the Consultant, its employees, and/or authorized subcontractors, of the work undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Consultant, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of the Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected officials, officers, agents and employees based upon the work performed by the Consultant, its employees, and/or authorized subcontractors under this Agreement, whether or not the Consultant, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstanding the foregoing, the Consultant shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City. This provision shall supersede and replace all other indemnity provisions contained either in the City’s specifications or Consultant’s Proposal, which shall be of no force and effect.
6.10. Independent Contractor. Consultant is and shall be acting at all times as an independent contractor and not as an employee of City. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its or employees are in any manner agents or employees of City. Consultant shall secure, at its sole expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all ATTACHMENT 2
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business licenses, if any are required, in connection with the services to be performed hereunder. Consultant shall indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with the applicable worker’s compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this paragraph.
6.11. PERS Eligibility Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
6.12. Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require.
6.13. Ownership of Documents. All findings, reports, documents, information and data including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City.
Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from City’s use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Consultant.
Consultant shall deliver to City any findings, reports, documents, information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City.
6.14. Public Records Act Disclosure. Consultant has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
6.15. Conflict of Interest. Consultant and its officers, employees, associates and subconsultants, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) ATTACHMENT 2
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and Government Code Section 1090. During the term of this Agreement, Consultant and its officers, employees, associates and sub-consultants shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or sub-consultants to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
6.16. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant occurs, then Consultant shall, at no cost to City, provide all necessary design drawings, estimates and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction.
6.17. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect.
6.18. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement.
Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
6.19. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
6.20. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
6.21. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
6.22. Construction. The parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning.
There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.23. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.
6.24. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.25. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the ATTACHMENT 2
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remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith negotiations.
6.26. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
6.27. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written.
CITY OF COSTA MESA,
A municipal corporation
__________________________________ Date: __________________________ [Mayor or City Manager]
CONSULTANT
__________________________________ Date: __________________________ Signature
__________________________________
Name and Title
__________________________________
Social Security or Taxpayer ID Number
ATTEST:
________________________________
City Clerk and ex-officio Clerk
of the City of Costa Mesa
APPROVED AS TO FORM:
__________________________________ Date: ________________________ City Attorney
APPROVED AS TO INSURANCE:
____________________________________ Date: ________________________ Risk Management
APPROVED AS TO CONTENT:
____________________________________ Date: ________________________ Project Manager
DEPARTMENTAL APPROVAL
____________________________________ Date: ________________________ Department Director
APPROVED AS TO PURCHASING:
__________________________________ Date: ___________________________ Finance Director
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APPENDIX D
FORMS
Vendor Application Form
Ex Parte Communications Certification
Disclosure of Government Positions
Disqualification Questionnaire
Company Profile & References
Bidder/Applicant/Contractor Campaign Contribution
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VENDOR APPLICATION FORM
FOR
RFP No. 23-08 ENGINEERING DESIGN SERVICES FOR THE EXPANSION OF SHALIMAR PARK
TYPE OF APPLICANT: NEW CURRENT VENDOR
Legal Contractual Name of Corporation: ______________________________________ Contact Person for Agreement: _____________________________________________ Title: ______________________________ E-Mail Address: ______________________ Business Telephone: _________________________ Business Fax: ________________ Corporate Mailing Address: ________________________________________________ City, State and Zip Code: __________________________________________________ Contact Person for Proposals: ______________________________________________ Title: ______________________________ E-Mail Address: ______________________ Business Telephone: _________________________ Business Fax: ________________ Is your business: (check one)
NON PROFIT CORPORATION FOR PROFIT CORPORATION Is your business: (check one)
CORPORATION LIMITED LIABILITY PARTNERSHIP
INDIVIDUAL SOLE PROPRIETORSHIP
PARTNERSHIP UNINCORPORATED ASSOCIATION
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Names & Titles of Corporate Board Members
(Also list Names & Titles of persons with written authorization/resolution to sign contracts)
Names Title Phone
___________________________________ ___________________________________
___________________________________ ___________________________________
___________________________________ ___________________________________
___________________________________ ___________________________________
___________________________________ ___________________________________
___________________________________ ___________________________________
Federal Tax Identification Number: __________________________________________
City of Costa Mesa Business License Number: ________________________________________ (If none, you must obtain a Costa Mesa Business License upon award of contract.)
City of Costa Mesa Business License Expiration Date: ________________________________
ATTACHMENT 2
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