Agenda packet — Costa Mesa City Council, February 4, 2025

CITY OF COSTA MESA
REGULAR CITY COUNCIL AND HOUSING AUTHORITY*
Agenda
City Council Chambers
77 Fair Drive
6:00 PMTuesday, February 4, 2025
*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 technical difficulties or experiencing any other critical issues, and unless required by the Brown Act, 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.

Closed Captioning is available via the Zoom option in English and Spanish.

Page 1 of 11 ends

1 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025
As a courtesy, the public may participate via the Zoom option.

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/81879579049?
pwd=_XoNBT2uciL7zrDsfj4A9Q9srLgExg.bQEU-le6VvXjPDeL
Or sign into Zoom.com and “Join a Meeting”
Enter Webinar ID: 818 7957 9049/ Password: 608584
• If Zoom is not already installed on your computer, click “Download & Run Zoom” on the launch page and press “Run” when prompted by your browser. If Zoom has previously been installed on your computer, please allow a few moments for the application to launch automatically.
• Select “Join Audio via Computer.”
• The virtual conference room will open. If you receive a message reading, “Please wait for the host to start this meeting,” simply remain in the room until the meeting begins.
• During the Public Comment Period, use the “raise hand” feature located in the participants’ window and wait for city staff to announce your name and unmute your line when it is your turn to speak. Comments are limited to 3 minutes, or as otherwise directed.

Participate via telephone: (For both 4:00 p.m. and 6:00 p.m. meetings) Call: 1 669 900 6833 Enter Webinar ID: 818 7957 9049/ Password: 608584 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.

Page 2 of 11 ends

2 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025
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. This includes items submitted for the overhead screen during the meeting. Items submitted for the overhead screen should be 1 page and provided to the City Clerk prior to the start of the meeting. 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. Las agendas y los informes se pueden ver en español en el sitio web de la Ciudad en
https://www.costamesaca.gov/trending/current-agendas/spanish-city-council-agendas.

Page 3 of 11 ends

3 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025
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].

Page 4 of 11 ends

4 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025
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. THREAT TO SECURITY
Pursuant to California Government Code Section 54957(a) Consultation with: Costa Mesa Director of Emergency Services/City Manager, Police Chief.

2. CONFERENCE WITH LEGAL COUNSEL – ANTICIPATION OF LITIGATION - ONE CASE
Pursuant to California Government Code Section 54956.9 (d)(2), Potential Litigation.

3. CONFERENCE WITH REAL PROPERTY NEGOTIATOR
Pursuant to California Government Code Section 54956.8
APN: 424-211-01; Property: 695 W. 19th Street, Costa Mesa, CA 92627 Agency Negotiators: Lori Ann Farrell Harrison, City Manager Negotiating Parties: Jamboree Housing
Under Negotiation: Price and Terms of Payment

4. CONFERENCE WITH REAL PROPERTY NEGOTIATOR
Pursuant to California Government Code Section 54956.8
APN: 424-051-23; Property: 778 Shalimar Drive, Costa Mesa, CA 92627 Agency Negotiators: Lori Ann Farrell Harrison, City Manager Negotiating Parties: Dominic Bulone
Under Negotiation: Price and Terms of Payment

Page 5 of 11 ends

5 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025

REGULAR MEETING OF THE CITY COUNCIL AND HOUSING AUTHORITY FEBRUARY 4, 2025 – 6:00 P.M.

JOHN STEPHENS
Mayor

MANUEL CHAVEZ ANDREA MARR Mayor Pro Tem - District 4 Council Member - District 3

ARLIS REYNOLDS LOREN GAMEROS Council Member - District 5 Council Member - District 2

JEFF PETTIS MIKE BULEY Council Member - District 6 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: NONE.

PUBLIC COMMENTS – MATTERS NOT LISTED ON THE AGENDA
Comments on Presentations and Consent Calendar items may also be heard at this time. Comments are limited to 3 minutes, or as otherwise directed.

Page 6 of 11 ends

6 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025

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 Marr

2. Council Member Reynolds

3. Council Member Pettis

4. Council Member Buley

5. Council Member Gameros

6. Mayor Pro Tem Chavez

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
25-157
RECOMMENDATION:

City Council and Housing Authority approve the reading by title only and waive further reading of Ordinances and Resolutions.

2. READING FOLDER 25-159
RECOMMENDATION:

City Council receive and file Claims received by the City Clerk and authorize staff to reject any and all Claims: Janie Dungan, Cindy Macfarland, Christina Morales-Tolentino, Mike Petrovic, Karen Wolf, California Auto Insurance Company of behalf of Shawn Ohearn.

Page 7 of 11 ends

7 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025

3. ADOPTION OF WARRANT RESOLUTION 25-144
RECOMMENDATION:

City Council approve Warrant Resolution No. 2727.

1. Summary Check Register 12-26-24

2. Summary Check Register 1-9-25

3. Summary Check Register 1-16-25
Attachments:

4. MINUTES 25-158
RECOMMENDATION:

City Council approve the minutes of the regular meeting of January 21, 2025.

1. 01-21-2025 Draft MinutesAttachments:

5. DESIGNATION OF VOTING DELEGATE FOR THE SOUTHERN
CALIFORNIA ASSOCIATION OF GOVERNMENTS (SCAG) 2025

REGIONAL CONFERENCE AND GENERAL ASSEMBLY
25-145
RECOMMENDATION:

It is recommended that Council Member Arlis Reynolds serve as the delegate and Council Member Mike Buley as the alternate for the upcoming 2025 Annual Southern California Association of Governments (SCAG) Regional Conference and General Assembly.

Page 8 of 11 ends

8 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025

6. ACCEPTANCE OF THE LED LIGHTING INSTALLATION AT CITY

PARKS AND ATHLETIC FACILITIES PROJECT (JACK HAMMETT

SPORTS COMPLEX, TEWINKLE ATHLETIC COMPLEX, COSTA
MESA TENNIS CENTER, AND BARK PARK), CITY PROJECT NO .
23-09
25-148
RECOMMENDATION:

Staff recommends the City Council:

1. Accept the work performed by R&M Electrical Contracting, Inc. (RMF Contracting, Inc.) [RMF ], 1523 North Harmony Circle, Anaheim, California 92807, for the Light-Emitting Diode (LED) Lighting Installation at City Parks and Athletic Facilities Project (Jack Hammett Sports Complex, TeWinkle Athletic Complex, Costa Mesa Tennis Center, and Bark Park), City Project No. 23-09, and authorize the City Clerk to file the Notice of Completion.

2. Authorize the City Manager to release the retention monies thirty-five ( 35) days after the Notice of Completion filing date; release the Labor and Material Bond seven (7) months after the filing date; and release the Faithful Performance Bond one (1) year after the filing date.

1. Final CostsAttachments:

7. AWARD THE PURCHASE OF BATTING CAGES FOR THE TEWINKLE

ATHLETIC COMPLEX
25-150
RECOMMENDATION:

Staff recommends the City Council:

1. Authorize the purchase of materials for two ( 2) bullpen/batting cages to be installed at the TeWinkle Athletic Complex through Civic Buys Cooperative Agreement #3570 with The KYA Group.

2. Authorize the City Manager to execute the necessary documents for the purchase of bullpen /batting cage materials for $154,246 from The KYA Group.

1. TeWinkle Athletic Complex Batting Cage MaterialsAttachments:

Page 9 of 11 ends

9 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025

8. PROFESSIONAL SERVICES AGREEMENT FOR ON-CALL STAFF

SUPPORT FOR GENERAL PLANNING SERVICES
25-151
RECOMMENDATION:

Staff recommends the City Council:

1. Approve and authorize the City Manager and City Clerk to execute a three-year Professional Service Agreement (PSA) with two one-year renewals in a form as approved by the City Attorney for on-call staff support for general planning services:
· City Advisors, LLC
· Community Catalyst, Inc.
· Dudek
· Interwest Consulting Group, Inc
· Kimley-Horn and Associates, Inc.
· MIG, Inc.
· Placeworks, Inc.
· The Code Group, Inc.

2. Authorize the City Manager, or designee, and City Clerk to execute the PSA and future amendments with the above listed firms including any potential increases in compensation as long as the amendments are within the annual budget.

1. Request for Proposal No. 25-08

2. Sample Professional Services Agreement
Attachments:

AT THIS TIME COUNCIL WILL ADDRESS ANY ITEMS PULLED FROM THE CONSENT

CALENDAR
------------------------------END OF CONSENT CALENDAR------------------------------- PUBLIC HEARINGS: NONE.
(Pursuant to Resolution No. 05-55, Public Hearings begin at 7:00 p.m.) OLD BUSINESS: NONE.

Page 10 of 11 ends

10 REGULAR CITY COUNCIL AND HOUSING
AUTHORITY*
Agenda February 4, 2025
NEW BUSINESS:

1. AWARD OF THE GREENVILLE-BANNING CHANNEL

HYDRODYNAMIC SEPARATOR (HDS) INSTALLATION PROJECT,
CITY PROJECT NO. 25-02
25-147
RECOMMENDATION:

Staff recommends the City Council:

1. Make a finding of California Environmental Quality Act (CEQA) categorical exemption pursuant to CEQA Guidelines Section 15301 and adopt plans, specifications, and working details for the Greenville-Banning Channel Hydrodynamic Separator (HDS) Installation Project, City Project No. 25-02.

2. Award a Public Works Agreement (PWA) for construction to the Zusser Company, Inc ., 528 Palisades Drive, Suite 504, Los Angeles, California 90272 in the amount of $811,750 (base bid and additive bid) and authorize an additional ten percent (10%) contingency, in the amount of $81,175 for construction, as needed, for any unforeseen costs related to this project.

3. Authorize the City Manager and City Clerk to execute the PWA with the Zusser Company, Inc ., and future amendments to the agreements within Council authorized limits.

4. Authorize $270,280 from the Westside Storm Drain Improvements Project (550022) to supplement the remaining costs of this 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
Attachments:

ADDITIONAL COUNCIL /BOARD MEMBER COMMITTEE REPORTS, COMMENTS, AND

SUGGESTIONS

ADJOURNMENT

Page 11 of 11 ends

11 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 25-157 Meeting Date: 2/4/2025
TITLE:

PROCEDURAL WAIVER: WAIVE THE FULL READING OF ALL ORDINANCES AND

RESOLUTIONS
RECOMMENDATION:

City Council and Housing Authority approve the reading by title only and waive further reading of Ordinances and Resolutions.

Page 1 of 1 ends

12 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 25-159 Meeting Date: 2/4/2025
TITLE:

READING FOLDER
DEPARTMENT: City Manager’s Office/City Clerk’s Division RECOMMENDATION:

Page 1 of 1 ends

13 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 25-144 Meeting Date: 2/4/2025
TITLE:

ADOPTION OF WARRANT RESOLUTION
DEPARTMENT: FINANCE DEPARTMENT
PRESENTED BY: CAROL MOLINA, FINANCE DIRECTOR
CONTACT INFORMATION: CAROL MOLINA, FINANCE DIRECTOR AT (714) 754-5243 RECOMMENDATION:

City Council approve Warrant Resolution No. 2727.

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. 25-01 “A” Off Cycle for $6,244.20 and 25-02 On Cycle for $3,778,274.99, and City operating expenses for $3,970,740.13.

Page 1 of 1 ends

14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 29
30 31
32 33
34 35
36 37
38 39
40 41
42 43
44 45
46 47
48 49
50 51
52 53
54 55
56 57
58 59
60 61
62 63
64 65
66 67
68 69
70 71
72 73
74 75

CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 25-158 Meeting Date: 2/4/2025
TITLE:

MINUTES
DEPARTMENT: City Manager’s Office/City Clerk’s Division RECOMMENDATION:

City Council approve the minutes of the regular meeting of January 21, 2025.

Page 1 of 1 ends

76 Minutes – Regular Meeting January 21, 2025 Page 1 of 16

REGULAR CITY COUNCIL AND HOUSING AUTHORITY
TUESDAY, JANUARY 21, 2025 - MINUTES
CALL TO ORDER – The Closed Session meeting was called to order by Mayor Stephens at 4:01 p.m.

ROLL CALL

Present: Council Member Buley, Council Member Gameros, Council Member Harper, Council Member Marr, Council Member Reynolds, Mayor Pro Tem, and Mayor Stephens.

Absent: None.

PUBLIC COMMENTS – NONE.

CLOSED SESSION ITEMS:

1. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION – ONE CASE Pursuant to California Government Code Section 54956.9 (d)(1) Name of Case: Insight Psychology and Addiction, Inc. v. City of Costa Mesa, U.S. District Court, Central District of California, Case No. 8:20 cv 00504 JVS JDE

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 v. Ohio House, LLC, a California limited liability corporation; Richard Perlin, Nancy Perlin, Dolores Perlin, and Brandon Stump as individuals
Orange County Superior Court Case No. 30-2018-01006173-CU-OR-NJC

3. 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; 1963 Wallace Ave.

Orange County Superior Court Case No. 30 2020 01133479

4. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION – ONE CASE Pursuant to California Government Code Section 54956.9 (d)(1) Moyer v. City of Costa Mesa, Orange County Superior Court Case No. 30-2022-01248290
City Council recessed at 4:03 p.m. for Closed Session.

Closed Session adjourned at 5:30 p.m.
77 Minutes – Regular Meeting January 21, 2025 Page 2 of 16 CALL TO ORDER - The Regular City Council 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 the mayor led the Pledge of Allegiance.

MOMENT OF SOLEMN EXPRESSION – Led by Calvary Chapel Dave Manne, Pastor Emeritus.

ROLL CALL

Present: Council Member Buley, Council Member Gameros, Council Member Harper, Council Member Marr, Council Member Reynolds, Mayor Pro Tem, and Mayor Stephens.

Absent: None.

CITY ATTORNEY CLOSED SESSION REPORT – No reportable action.

PRESENTATIONS:

Mr. Turpit and Ms. Young presented an update on the Orange County Vector Control District.

PUBLIC COMMENTS – MATTERS NOT LISTED ON THE AGENDA
Rachel McIntyre requested additional lighting at the tennis center parking lot and submitted 60 signatures.

Flo Martin, Costa Mesa, member of the Active Transportation Committee and Costa Mesa Alliance for Better Streets, spoke on traffic safety concerns, cited statistics on injury crashes, traffic stops, citations, and pedestrian injuries.

Jay Humphrey, Costa Mesa, spoke about safety concerns regarding e-bikes, spoke on high rental housing costs and on affordable housing.

Maria Melendez spoke on the rental assistance program and requested the program to continue.

Mat Garcia, Costa Mesa, representing Harbor Soaring Society, spoke on the Society, the flying field at Fairview Park, operating principles, safety, minimizing the impacts to the park and maximizing the benefits to the community. Stated the Harbor Soaring Society participates at Imaginology, restoration events, and Estancia High School Engineering programs.

Jenn Tanaka, Costa Mesa, thanked the firefighters for assisting with the Los Angeles fires, spoke on improving bikeability and walkability, advocated for funding for neighborhood parks and playgrounds, spoke on Harper Park and that Park Rangers are still present, requested park statistics, and that it is not the best use of police resources.

Juana Trejo spoke on children having emotional problems, afraid parents will be deported, requested the city keep helping the Latino community.
78 Minutes – Regular Meeting January 21, 2025 Page 3 of 16 Kim Hendricks, President of Fairview Park Alliance, spoke on Fairview Park and the wildlife at Fairview Park and showed pictures, spoke against the flying field, and that on February 8 th is the restoration planning event.

Speaker, spoke against the bike lanes on West 19th street and the unintended consequences, and spoke against Measure K.

Cynthia McDonald, Costa Mesa, thanked the firefighters for assisting at the Los Angeles fires, spoke on fire safety and updating the codes, requested a Nixle system, and urged Chief Stefano to have a townhall on fire safety.

Speaker, spoke on the importance of the 311 App and making it available in Spanish, and spoke on prohibiting gas-powered leaf blowers.

Marc Vukcevich spoke on AB 413 prohibiting the parking of a vehicle within 20 feet of an intersection and spoke on enforcement of the law.

Priscilla Rocco, Costa Mesa, spoke against the Harbor Soaring Society being allowed to fly at Fairview Park, and spoke on Fairview Park resources.

COUNCIL MEMBER COMMITTEE REPORTS, COMMENTS, AND SUGGESTIONS Council Member Gameros praised the Costa Mesa Firefighters for assisting with the Los Angeles fires, spoke on enforcement of illegal e-bikes on the streets, and spoke on the Harbor Soaring Society and Fairview Park Alliance working together.

Council Member Marr expressed sympathy for those affected by the Los Angeles fires, thanked Costa Mesa Firefighters for assisting, spoke on emergency preparedness, updating building codes, fire resistant landscaping, increasing fire preparedness, infrastructure risks, audit of emergency operations systems, reassuring the community on the intent to continue to do community policing, encouraged reporting crime, and requested information on Nixle.

Council Member Reynolds requested utilizing Nixle to disseminate information, Spoke on emergency preparedness, checklists for the community, plans for seniors or residents with limited mobility, welcomed the new council members, reported on the Mobile Home Park Advisory Committee meeting, spoke on the Talbert Park Master Plan comment period, and spoke on speeding on Victoria Street and requested speed data.

Council Member Pettis spoke on receiving updates from the Police and Fire Chiefs, spoke on attending ribbon cuttings, and thanked the first responders.

Council Member Buley spoke on attending events, seminars, spoke on the Los Angeles fires and emergency preparedness, spoke on reports regarding SB54 regarding recyclable packaging, and recognized Jake Knapp, a local golf player with multiple PGA tournament wins. 79 Minutes – Regular Meeting January 21, 2025 Page 4 of 16 Mayor Pro Tem Chavez thanked the Fire and Rescue Department, extended prayer to those affected by the fires, thanked the fire association for partnering with IKEA for Operation Santa Claus, thanked the Crossing Church, La Movida radio, and the OC Promotoras for the January 6th toy give away, thanked Share Our Selves (SOS) for aiding families in the community, spoke on the mobile farmers market at Rea Elementary School, congratulated St. Mary Armenian Apostolic Church for the unveiling of the Stambolian Assembly Hall, expressed safety concerns on 19 th Street and Pomona Avenue intersection and requested researching left turn signals, requested a presentation on the immigration laws and community policing, and requested to adjourn the meeting in honor of his father Juan Chavez Garcia who passed away on Dec 26th.

Mayor Stephens thanked staff for Snoopy House, thanked the Fire Association for partnering with Ikea for Operation Santa Claus, spoke on attending the St. Mary Apostolic Armenian Church event, spoke on attending the Bayside Church ribbon cutting, spoke on attending the Mayors conference in Washington D.C., spoke on immigration policies and advising the community, supports the Costa Mesa 311 App in Spanish, spoke on the Symphonic Sole event at Segerstrom, praised the firefighters for assisting at the Los Angeles fires and spoke on saving lives, spoke on emergency preparedness, and spoke on adjourning the meeting in honor of City of Orange Council Member Mark Murphy, President Carter, and Jim Ortiz, the City Arborist.

REPORT – CITY MANAGER – Ms. Farrell Harrison welcomed Council Members Pettis and Buley and expressed condolences to Mayor Pro Tem Chavez, thanked the firefighters and their families, spoke on emergency management and preparedness, spoke on Nixle and Alert OC, spoke on donation opportunities and PhilanthropyOC.org, spoke on attending a public sector executive summit at Harvard on AI capabilities, and spoke on a study session on January 28th regarding the Fairview Park Master Plan update.

REPORT – CITY ATTORNEY – Ms. Hall Barlow reported on the decision by the United States Court of Appeals for the Ninth Circuit on Ohio House v. City of Costa Mesa and the decision was in favor of the City, and extended condolences to Mayor Pro Tem Chavez.

CONSENT CALENDAR
MOVED/SECOND: Council Member Marr/Council Member Reynolds MOTION: Approve the Consent Calendar except for item nos. 5 and 6.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: Council Member Gameros recused himself on item 3 the Warrant Resolution due to his wife working at Priceless Pets, and Mayor Stephens recused himself on item 3 the Warrant Resolution due to campaign contributions received from Ware Disposal and Everett Dorey.

Motion carried: 7-0
80 Minutes – Regular Meeting January 21, 2025 Page 5 of 16

1. PROCEDURAL WAIVER: WAIVE THE FULL READING OF ALL ORDINANCES AND

RESOLUTIONS
ACTION:

City Council and Housing Authority approved the reading by title only and waived further reading of Ordinances and Resolutions.

2. READING FOLDER
ACTION:

City Council received and filed Claims received by the City Clerk and authorized staff to reject any and all Claims: Hasna Shenai Aini, Ahmad Alamour, Mohammad Alamour, Malik Alrefai, Rami Anabtawi, Tariq “Eric” Assfour, Zayd Aweinat, Brian Brakeville, Hernan Arturo Calderon, Michael Chang, Mark Gradoni, Hani A. Habbas, Brook Haley, Lubna Hammad, Jacob Andrew Hernandez, Anthony Hertel, Adel Hijazi, Brandon Hood, Steven Anthony Hunt, Donavian “Navi” Huskey, Theodores Kapogianis, Faran Kharal, Matthew Leibelt, Ann Makaenamorgan, Glorianne Mendoza, Angie Belen Monreal, Salma Nasoordeen, Julie Nguyen, Savannah Plaskon, James Schwab, Jeff Taylor, Ashley Tfaye, Jaelynn Valez, Nikita Bear Yu, Fatana Zadran, Omar Zegar.

3. ADOPTION OF WARRANT RESOLUTION
Council Member Gameros recused himself on the item due to his wife working at Priceless Pets.

Mayor Stephens recused himself on the item due to campaign contributions received from Ware Disposal and Everett Dorey.

ACTION:

City Council approved Warrant Resolution No. 2726.

4. MINUTES
ACTION:

City Council approved the minutes of the regular meeting of November 19, 2024 and special meeting of December 5, 2024.

7. ADAMS AVENUE ACTIVE TRANSPORTATION IMPROVEMENTS - MULTIPURPOSE TRAILS
ACTION:

1. City Council awarded Professional Services Agreement (PSA) to Onward Engineering in the amount of $374,517, for professional engineering design services for the Adams Avenue Active Transportation Improvements - Multipurpose Trails project, with an initial term period of five years, effective January 21, 2025 - January 20, 2030.

2. Authorized a ten percent (10%) contingency in the amount of $37,452 for any unforeseen costs that may be required by the project.
81 Minutes – Regular Meeting January 21, 2025 Page 6 of 16

3. Authorized the City Manager and the City Clerk to execute the PSA and any future amendments to the agreement.

ITEMS PULLED FROM THE CONSENT CALENDAR

5. APPROVAL OF MAYOR’S APPOINTMENTS TO THE TRANSPORTATION

CORRIDOR AGENCIES AND ORANGE COUNTY VECTOR CONTROL DISTRICT Public Comments:

Marc Vukcevich spoke on license plate obstruction that is currently illegal in California, and the loss of revenue.

MOVED/SECOND: Mayor Pro Tem Chavez/Mayor Stephens
MOTION: Approve staff recommendation.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
ACTION:

City Council approved the following Mayor’s appointments:

1. Transportation Corridor Agencies (TCA): Mayor John Stephens and Alternate - Councilmember Arlis Reynolds.

2. Orange County Vector Control District (OCVCD): Mr. Bill Turpit.

6. AWARD OF PROFESSIONAL SERVICES AGREEMENT TO DEVELOP A

FACILITIES MASTER PLAN FOR CITY OWNED FACILITIES
Public Comments:

Ralph Taboada spoke on the five-year Capital Improvement Program, spoke on a vision for the City, and on staffing needs, spoke on service levels with an increase of households, and is opposed to the item until the City has a strategic plan.

Mr. Sethuraman spoke on comprehensive assessment of City facilities and short term v. long term improvements, and spoke on ongoing needs that need to be addressed. 82 Minutes – Regular Meeting January 21, 2025 Page 7 of 16 MOVED/SECOND: Council Member Marr/Council Member Reynolds MOTION: Approve staff recommendation.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
ACTION:

1. City Council approved Professional Services Agreement (PSA) in the amount of $299,693 to M. Arthur Gensler Jr. & Associates, Inc., 4675 MacArthur Court, Suite 100, Newport Beach, CA, to develop a facilities master plan for City-owned facilities.

2. Authorized a ten percent (10%) contingency in the amount of $29,970 for unforeseen costs related to the project.

3. Authorized the City Manager and City Clerk to execute the PSA and any future amendments to the agreement.
------------------------------END OF CONSENT CALENDAR------------------------------- City Council recessed into a break at 8:15 p.m.

City Council reconvened at 8:31 p.m.

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 UPHOLD THE ZONING ADMINISTRATOR’S DECISION TO APPROVE MINOR CONDITIONAL USE PERMIT AND OUTDOOR DINING PERMIT (PODA-24-0001 AND PMCP-24-0008) LOCATED AT 814 WEST 19TH STREET (“WESTEND”)
Ex Parte Communication: Mayor Stephens toured the location with an employee.

Presentation by Mr. Arios, Associate Planner.

Kayleigh Brunner, Operational Manager at Westend, spoke on the business and the project.

Public Comments:

Marc Vukcevich spoke on the lengthy process and spoke in support of the item. 83 Minutes – Regular Meeting January 21, 2025 Page 8 of 16 Andy McBay, business owner across the street, expressed concern regards to parking in their lot across the street, and the detrimental effects to their property, inquired on the length of the parking agreement, and spoke on the difficulty to enforce and the need for 24-hour security.

Speaker, spoke in support of Westend.

Daniel Mages spoke in support of Westend.

Jay Barner spoke in support of Westend.

Speaker, expressed concern on allowing music past 11:00 p.m. and expressed concern on parking.

Speaker, expressed concern on how to monitor sound waves, and the mechanisms to measure decibels.

Zac and Nichole Johnson spoke in support of Westend.

MOVED/SECOND: Mayor Stephens/Council Member Gameros
MOTION: Approve staff recommendation with the following changes:
 Remove section 17 regarding the requirement for a 6-month review.  Remove section 18 and allow the hours of operation per the applicants request.  Provide property owners on Federal Way with written communication with a point of contact for any issues that may arise with the business.

SUBSTITUTE MOTION/SECOND: Council Member Marr
SUBSTITUTE MOTION: Approve staff recommendation with the same change as the original motion and require the live music to end at 12:00 a.m.

The motion failed for lack of a second.

ORIGINAL MOTION/SECOND: Mayor Stephens/Council Member Gameros MOTION: Approve staff recommendation with the following changes:
 Remove section 17 regarding the requirement for a 6-month review.  Remove section 18 and allow the hours of operation per the applicants request.  Provide property owners on Federal Way with written communication with a point of contact for any issues that may arise with the business.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: Council Member Marr.

Absent: None.

Abstain: None.

Motion carried: 6-1
ACTION:

City Council upheld the Planning Commission’s decision upholding the Zoning Administrator’s decision approving PODA-24-0001 AND PMCP-24-0008 with the following changes:
84 Minutes – Regular Meeting January 21, 2025 Page 9 of 16  Remove section 17 regarding the requirement for a 6-month review.  Remove section 18 and allow the hours of operation per the applicants request.  Provide property owners on Federal Way with written communication with a point of contact for any issues that may arise with the business.

2. SECOND READING OF AN ORDINANCE AMENDING TITLE 3 (ANIMAL

REGULATIONS) OF THE COSTA MESA MUNICIPAL CODE BY AMENDING

CHAPTER I (IN GENERAL) AND CHAPTER VI (SPECIAL ANIMAL PERMIT) TO

PROVIDE FOR BEEKEEPING AND TO CLARIFY APPEAL PROCEDURES FOR

SPECIAL ANIMAL PERMITS
Presentation by Lt. Selinske.

Public Comments:

Jenn Tanaka thanked the Costa Mesa Police Department for their efforts on the ordinance and thanked the public for their input.

Speaker, spoke in support the ordinance.

MOVED/SECOND: Mayor Pro Tem Chavez/Council Member Marr
MOTION: Approve staff recommendation.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
ACTION:

1. City Council gave second reading to and adopted Ordinance No. 2025-01 amending Title 3 (Animal Regulations) of the Costa Mesa Municipal Code by amending Chapter I (In General) and Chapter VI (Special Animal Permit) to allow for the lawful keeping of bees and/or hives within the city and to clarify appeal procedures for special animal permits.

2. Adopted Resolution No. 2025-02 of the City Council of the City of Costa Mesa, California, establishing a beekeeping permit user fee to be added to the City’s Consolidated Schedule of User and Regulatory Fees.

OLD BUSINESS: NONE.
85 Minutes – Regular Meeting January 21, 2025 Page 10 of 16 NEW BUSINESS:

1. SAFE ROUTES TO SCHOOL ACTION PLAN
Presentation by Mr. Thomas, Active Transportation Coordinator.

Public Comments:

Ralph Taboada spoke in support of the item and requested to make improvements sooner if possible.

Speaker, spoke in support of the item and requested to include the Newport Beach schools.

Marc Vukcevich spoke in support of the item.

Cynthia McDonald spoke in support of the item and on ensuring Kimley Horn and Associates, Inc. conforms to the contract.

MOVED/SECOND: Council Member Reynolds/Mayor Stephens
MOTION: Approve staff recommendation with the following changes:
 Add the four Newport Beach schools: Newport Harbor, Ensign Intermediate, Mariners Elementary, and Newport Heights.
 Increase the total budgeted amount to adjust for the additional schools and design.

Mayor Stephens requested to add the condition that the item is immediately brought back before Council if there are any issues with funding.

Council Member Reynolds agreed to the addition.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
86 Minutes – Regular Meeting January 21, 2025 Page 11 of 16 ACTION:

1. City Council awarded the Professional Services Agreement (PSA) to Kimley-Horn and Associates, Inc. in the annual amount of $541,774 for professional engineering services for the development of Safe Routes to School Action Plan, with an initial term period of two years, effective January 21, 2025 - January 20, 2027, with the option of two one-year renewal periods.

2. Authorized a ten percent (10%) contingency in the amount of $54,177 for any unforeseen costs that may be required by the project.

3. Authorized the City Manager and the City Clerk to execute the PSA and any future amendments to the agreement.

4. Add the four Newport Beach schools: Newport Harbor, Ensign Intermediate, Mariners Elementary, and Newport Heights; increase the total budgeted amount to adjust for the additional schools and design; add the conditions that the item is immediately brought back before Council if there are any issues with funding.

2. APPOINTMENTS TO THE ARTS, PARKS AND COMMUNITY SERVICES, AND

PLANNING COMMISSIONS
Presentation by Ms. Green, City Clerk.

Public Comments:

Jenn Tanaka spoke in support of Russell Toler for the Planning Commission.

David Martinez requested clarification if the Mayor’s appointment was four years or two years.

Marc Vukcevich spoke on the Planning Commission applications and in support of Russell Toler.

Brendan Ford introduced himself as an applicant for the Arts Commission.

Ralph Taboada spoke in support of Russell Toler and Jenn Tanaka for the Planning Commission and in support of Shayanne Wright for the Parks and Community Services Commission.

Jake Husen introduced himself as an applicant.

Speaker, spoke on cronyism.

Cynthia McDonald spoke on cronyism.

Russell Toler rescinded his application and spoke in support of Jenn Tanaka.

ACTION:

City Council made appointments as follows:
87 Minutes – Regular Meeting January 21, 2025 Page 12 of 16 MOVED/SECOND: Mayor Stephens/Mayor Pro Tem Chavez
MOTION: Appoint Deborah Wondercheck to the Arts Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
MOVED/SECOND: Council Member Buley/Council Member Reynolds MOTION: Appoint Allison Mann to the Arts Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
MOVED/SECOND: Council Member Gameros/Council Member Chavez MOTION: Appoint Brendan Ford to the Arts Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
MOVED/SECOND: Council Member Pettis/Council Member Reynolds MOTION: Appoint Fisher Derderian to the Arts Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0

1. Arts Commission - Mayor Stephens appointed Deborah Wondercheck to the Arts Commission with a term expiration of January 2027, Council Member Buley appointed Allison Mann, Council Member Gameros appointed Brendan Ford, and Council Member Pettis appointed Fisher Derderian to the Arts Commission with term expirations of January 2029.
88 Minutes – Regular Meeting January 21, 2025 Page 13 of 16 MOVED/SECOND: Mayor Stephens/Council Member Reynolds
MOTION: Appoint Shayanne Wright to the Parks and Community Services Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
MOVED/SECOND: Council Member Pettis/Council Member Chavez MOTION: Appoint Jason Komala to the Parks and Community Services Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
MOVED/SECOND: Council Member Buley/Council Member Chavez MOTION: Appoint Jake Husen to the Parks and Community Services Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
MOVED/SECOND: Council Member Gameros/Council Member Marr MOTION: Appoint Brandice Lea Leger to the Parks and Community Services Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
89 Minutes – Regular Meeting January 21, 2025 Page 14 of 16 MOVED/SECOND: Council Member Marr/Council Member Chavez MOTION: Appoint Elizabeth Dorn Parker to the Parks and Community Services Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0

2. Parks and Community Services Commission – Mayor Stephens appointed Shayanne Wright to the Parks and Community Services Commission and Council Member Marr appointed Elizabeth Dorn Parker with term expirations of January 2027, Council Member Buley appointed Jake Husen, Council Member Pettis appointed Jason Komala, and Council Member Gameros appointed Brandice Lea Leger with term expirations of January 2029.

MOVED/SECOND: Mayor Stephens/Council Member Gameros
MOTION: Appoint Jeff Harlan to the Planning Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
MOVED/SECOND: Council Member Gameros/Mayor Stephens
MOTION: Appoint Johnny Rojas to the Planning Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0
90 Minutes – Regular Meeting January 21, 2025 Page 15 of 16 MOVED/SECOND: Council Member Pettis/Mayor Stephens
MOTION: Appoint Robert Dickson to the Planning Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Pettis, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: Council Member Gameros, Council Member Marr, and Council Member Reynolds.

Absent: None.

Abstain: None.

Motion carried: 4-3
MOVED/SECOND: Council Member Buley/Council Member Chavez MOTION: Appoint Jonathan Zich to the Planning Commission.

The motion carried by the following roll call vote:

Ayes: Council Member Buley, Council Member Gameros, Council Member Marr, Council Member Pettis, Council Member Reynolds, Mayor Pro Tem Chavez, and Mayor Stephens.

Nays: None.

Absent: None.

Abstain: None.

Motion carried: 7-0

3. Planning Commission - Mayor Stephens appointed Jeff Harlan to the Planning Commission with a term expiration of January 2027, Council Member Buley appointed Jonathan Zich, Council Member Pettis appointed Robert Dickson, and Council Member Gameros appointed Johnny Rojas with term expirations of January 2029.

ADDITIONAL COUNCIL/BOARD MEMBER COMMITTEE REPORTS, COMMENTS, AND SUGGESTIONS – NONE.

ADJOURNMENT – Mayor Stephens adjourned the meeting at 10:40 p.m. in honor and memory of Juan Chavez Garcia, Mark Murphy, Jim Ortiz, and President Carter. 91 Minutes – Regular Meeting January 21, 2025 Page 16 of 16 Minutes adopted on this 4th day of February, 2025.
___________________________
John Stephens, Mayor
ATTEST:
___________________________
Brenda Green, City Clerk
92 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 25-145 Meeting Date: 2/4/2025
TITLE:

DESIGNATION OF VOTING DELEGATE FOR THE SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS (SCAG) 2025 REGIONAL CONFERENCE AND GENERAL ASSEMBLY DEPARTMENT: CITY MANAGER’S OFFICE/CITY CLERK DIVISON
PRESENTED BY: BRENDA GREEN, CITY CLERK
CONTACT INFORMATION: BRENDA GREEN, (714) 754-5221
RECOMMENDATION:

BACKGROUND:

The annual SCAG Regional Conference & General Assembly will be held Thursday, May 1, 2025, through Friday, May 2, 2025 at the JW Marriott Desert Springs Resort & Spa in Palm Desert, CA.

SCAG requests that each member city appoint a delegate to vote at the Assembly.

ANALYSIS:

It is during the Annual General Assembly that resolutions are adopted, setting the legislative platform for SCAG in the coming year. SCAG by-laws entitle each city to one vote in matters affecting municipal or SCAG policy. Each member city is entitled to designate a delegate to participate in the voting.

ALTERNATIVES:

City Council may choose to not appoint a delegate or may select another City Council member as the delegate.

FISCAL REVIEW:

The funding for the conference is available in the Fiscal Year 2024-25 General Fund (Fund 101) in the City Council Budget.

LEGAL REVIEW:

The City Attorney’s Office has reviewed this report and has approved it as to form.

Page 1 of 2 ends

93 File #: 25-145 Meeting Date: 2/4/2025
CITY COUNCIL GOALS AND PRIORITIES:

This item is administrative in nature.

CONCLUSION:

The City Council designate Council Member Arlis Reynolds as the delegate and Council Member Mike Buley as the alternate for the upcoming 2025 Annual Southern California Association of Governments (SCAG) Regional Conference and General Assembly.

Page 2 of 2 ends

94 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 25-148 Meeting Date: 2/4/2025
TITLE:

ACCEPTANCE OF THE LED LIGHTING INSTALLATION AT CITY PARKS AND ATHLETIC

FACILITIES PROJECT (JACK HAMMETT SPORTS COMPLEX, TEWINKLE ATHLETIC COMPLEX, COSTA MESA TENNIS CENTER, AND BARK PARK), CITY PROJECT NO. 23-09 DEPARTMENT: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION PRESENTED BY: RAJA SETHURAMAN, PUBLIC WORKS DIRECTOR
CONTACT INFORMATION: SEUNG YANG, P.E., CITY ENGINEER, (714) 754-5335 RECOMMENDATION:

Staff recommends the City Council:

1. Accept the work performed by R&M Electrical Contracting, Inc. (RMF Contracting, Inc.) [RMF], 1523 North Harmony Circle, Anaheim, California 92807, for the Light-Emitting Diode (LED) Lighting Installation at City Parks and Athletic Facilities Project (Jack Hammett Sports Complex, TeWinkle Athletic Complex, Costa Mesa Tennis Center, and Bark Park), City Project No. 23-09, and authorize the City Clerk to file the Notice of Completion.

2. Authorize the City Manager to release the retention monies thirty-five (35) days after the Notice of Completion filing date; release the Labor and Material Bond seven (7) months after the filing date; and release the Faithful Performance Bond one (1) year after the filing date.

BACKGROUND:

In 2022, State Senator David Min earmarked funding for the City of Costa Mesa in the amount of $10 million. City Council approved appropriations to upgrade the existing lighting at select parks and sports athletic facilities to LED lighting. The funding for these projects has been allocated in the adopted Fiscal Year 2023-24 Capital Improvement Program (CIP) budget.

On September 19, 2023, the City Council authorized the use of Sourcewell’sCooperative Agreement with Musco Sports Lighting, LLC, for the purchase of LED lighting equipment and material to retrofit aging facilities at multiple City park and athletic field locations. The locations for the installation of these new lighting facilities include Jack Hammett Sports Complex, TeWinkle Athletic Complex, Costa Mesa Tennis Center, and Bark Park.

On January 16, 2024, the City Council awarded a construction contract in the amount of $759,700 to

Page 1 of 4 ends

95 File #: 25-148 Meeting Date: 2/4/2025
On January 16, 2024, the City Council awarded a construction contract in the amount of $759,700 to RMF for the LED Lighting Installation at City Parks and Athletic Facilities Project (Jack Hammett Sports Complex, TeWinkle Athletic Complex, Costa Mesa Tennis Center, and Bark Park), City Project No. 23-09.

ANALYSIS:

The contractor, RMF, completed construction improvements, performed electrical upgrades, and installed new lighting fixtures that improved lighting, illumination, and overall safety at the City’s highly used recreational facilities listed below:
· Jack Hammett Sports Complex
· TeWinkle Athletic Complex
· Costa Mesa Tennis Center
· Bark Park
The work required by the contract documents was completed on September 4, 2024 to the satisfaction of the City Engineer. The final contract cost, including quantity adjustments and change orders, amounted to $817,379.93. A report of the final costs is included as Att. 1.

A summary of the costs is as follows:

Total Contract Cost: $759,700.00
Final Quantity Adjustments: $ 57,679.93
Final Contract Cost: $817,379.93
As of this date, there are no Stop Notices filed against the monies due to RMF.

Page 2 of 4 ends

96 File #: 25-148 Meeting Date: 2/4/2025

Page 3 of 4 ends

97 File #: 25-148 Meeting Date: 2/4/2025
ALTERNATIVES:

This item is administrative in nature.

FISCAL REVIEW:

This project was funded through a grant from State Senator David Min (Fund 231) and from the Capital Improvement Fund (Fund 401).

LEGAL REVIEW:

The City Attorney’s Office has reviewed this agenda report and approves it as to form.

CITY COUNCIL GOALS AND PRIORITIES:

This project achieved the following City Council goals:
· Strengthen the public’s safety and improve the quality of life. · Maintain and enhance the City’s Facilities, Equipment and Technology.

CONCLUSION:

Staff recommends the City Council:

1. Accept the work performed by RMF, 1523 North Harmony Circle, Anaheim, California 92807, for the LED Lighting Installation at City Parks and Athletic Facilities Project (Jack Hammett Sports Complex, TeWinkle Athletic Complex, Costa Mesa Tennis Center, and Bark Park), City Project No. 23-09, and authorize the City Clerk to file the Notice of Completion.

2. Authorize the City Manager to release the retention monies thirty-five (35) days after the Notice of Completion filing date; release the Labor and Material Bond seven (7) months after the filing date; and release the Faithful Performance Bond one (1) year after the filing date.

Page 4 of 4 ends

98 CONTRACTOR R&M ELECTRICAL CONTRACTING (RMF CONTRACTING) 1523 N. Harmony Circle, Anaheim, CA 92807
Project: LED LIGHTING INSTALLATION AT CITY PARKS AND ATHLETIC FACILITIES PROJECT City Project No. 23-09

ITEM UNIT PREVIOUS TOTAL QUANTITY CONTRACT

NO PRICE QUANTITY TO DATE PRICE
1 1 LS LED Lighting installation at City Parks and Athletic Faciliites $759,700.00 0.00 % 100.00 % $759,700.00
A1 1 FA Remove and replace existing junction boxes at the Tennis Center as directed by Maintenance Svcs. $22,000.00 0.00 FA 100.00 % $22,000.00 A2 1 FA Replacement of wire at Jack Hammett SC as
directed by Maintenance Svcs. $35,679.93 0.00 FA 100.00 % $35,679.93 $817,379.93

BID QUANTITY
ATTACHMENT 1
TOTAL:

DESCRIPTION
99 CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 25-150 Meeting Date: 2/4/2025
TITLE:

AWARD THE PURCHASE OF BATTING CAGES FOR THE TEWINKLE ATHLETIC COMPLEX DEPARTMENT: PUBLIC WORKS DEPARTMENT/MAINTENANCE SERVICES DIVISION PRESENTED BY: RAJA SETHURAMAN, PUBLIC WORKS DIRECTOR
CONTACT INFORMATION: ROBERT RYAN, MAINTENANCE SERVICES MANAGER, (714) 754-5123
RECOMMENDATION:

Staff recommends the City Council:

1. Authorize the purchase of materials for two (2) bullpen/batting cages to be installed at the TeWinkle Athletic Complex through Civic Buys Cooperative Agreement #3570 with The KYA Group.

2. Authorize the City Manager to execute the necessary documents for the purchase of bullpen/batting cage materials for $154,246 from The KYA Group.

BACKGROUND:

TeWinkle Park is a 49-acre park dedicated in 1965 in honor of the first mayor of the City of Costa Mesa, Charles TeWinkle. The TeWinkle Athletic Complex (Complex) located within the footprint of the park, is a 6-acre sports complex featuring one (1) baseball field and three (3) softball fields. The fields serve as a focal point for both recreational and competitive leagues. The Complex is utilized by organizations such as Costa Mesa Pony, Costa Mesa Little League, Newport Harbor Baseball Association, Newport Harbor High School Baseball, Estancia High School Baseball, and Newport Mesa Girls Softball. Field use at the Complex for Fiscal Year 2023-24 across all programs included 184 teams and 8,527 players/users from 32 unique organizations. This broad and diverse participation illustrates the field’simportance to the community and highlights its capacity to serve a variety of sporting interests, making these fields a valuable community resource.

The addition of batting cages has been a highly requested amenity that would improve and modernize the complex. Included in the City’s current adopted Fiscal Year 2024-25 Capital Improvement Budget is funding to add batting cages to the TeWinkle Athletic Complex.

Page 1 of 2 ends

100
File #: 25-150 Meeting Date: 2/4/2025
ANALYSIS:

Batting cages offer a controlled environment for players to practice hitting and improve their hand-eye coordination, strength, and timing. This controlled environment allows other players to focus on fielding practice on the fields without the concern of stray balls or mishits from batting practice.

Staff identified a cooperative agreement through Civic Buys with The KYA Group for the purchase of all materials needed for the installation of two (2) batting cages. Purchasing the material through The KYA Group meets all requirements set forth in the City of Costa Mesa’sPurchasing Policy and all requirements set forth by the State of California relating to regional cooperative purchasing agreements. This process ensures that the City still receives the lowest available pricing, and meets the competitive bid process requirements. The City has utilized other cooperative agreements successfully for several previous related purchases.

The KYA Group quote totals $154,246.18, which includes all parts, equipment, plans, and delivery. A separate construction contract will be executed thereafter for the installation of the batting cages.

ALTERNATIVES:

The City Council could choose not to authorize the use of the national cooperative agreement with The KYA Group. This will require staff to initiate a formal bidding process, which will take significantly more time to complete. In addition, formal bidding may not result in lower prices than the proposed Civic Buys pricing.

FISCAL REVIEW:

The total amount of the contract will not exceed $154,246.18. The funding is available in the Fiscal Year 2024-25 Capital Improvement Fund (Fund 401) for this project.

LEGAL REVIEW:

The City Attorney’s Office has reviewed this report and approves it as to form.

CITY COUNCIL GOALS AND PRIORITIES:

This item supports the following City Council Goals:
· Strengthen the Public’s Safety and Improve the Quality of Life. · Maintain and enhance the City’s facilities, equipment and technology.

CONCLUSION:

Staff recommends the City Council:

1. Authorize the purchase of materials for two (2) bullpen/batting cages to be installed at the TeWinkle Athletic Complex through Civic Buys Cooperative Agreement #3570 with The KYA Group.

2. Authorize the City Manager to execute the necessary documents for the purchase of bullpen/batting cage materials for $154,246 from The KYA Group.

Page 2 of 2 ends

101

PREPARED FOR
Robert Ryan
City of Costa Mesa
7147545328
[email protected]
10/30/2024
City of Costa Mesa - Tewinkle Park -
Upgrades
Project Number P-0102531
KYA CivicBuys 3570 GSA
Contact
Deanna Rey
1800 E. McFadden Ave.

Santa Ana, CA
[email protected]
Pages 6 LICENSE 984827 (B, C15, D12, A, C20, C10, C33)
DIR # 1000003379
ATTACHMENT 1
102
Initials
This is a legal agreement - please read carefully
Complete and Initial all pages Proposal Number P-0102531 2 Proposal: P-0102531
To: City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
RA: Deanna Rey
RA Phone:

RA Email: [email protected]
Site: Tewinkle Park
Address: 970 Arlington Dr
Costa Mesa, CA 92626
Date: 10/30/2024
Terms: Net30
KYA CivicBuys 3570 GSA
Site Qualifications and General Scope of Work DIR # 1000003379 Priced per KYA CivicBuys 3570 GSA
*All project proposals based on a specific set/sets of plans are considered preliminary budgets and may be subject to pricing changes once the plans are approved by the relevant authority.

Notes: Sales tax rate will be based upon the shipping address. Price is good for 30 days from date of quote.
103
Initials
This is a legal agreement - please read carefully
Complete and Initial all pages Proposal Number P-0102531 3 SCOPE OF WORK - PRICING
City of Costa Mesa - Tewinkle Park - Upgrades Quantity U/M Price Value Taxable 3/4IN CL 2 BASE P - CLASS 2 AGGREGATE BASE- PERMEABLE 70 CY $101.44 $7,100.80 T 24010620 - COMPOSITE HEADER BOARD 2" X 4" X 20' 280 LF $3.11 $870.80 T 89240 - ACRYLIC COATED SAND 15000 LB $0.49 $7,350.00 T
MULTIPLAY - SYNTHETIC TURF - MULTIPLAY 1800 SF $3.56 $6,408.00 T 178799 - SYNTETHIC TURF TAPE - SINGLE-LAYER 12"X3 4 EA $186.52 $746.08 T 157R140N15 - MIRAFI HP270 (SQ FT) 1800 SF $0.34 $612.00 T 233304 - SYNTHETIC TURF ADHESIVE - 1 GAL 15 EA $73.63 $1,104.45 T 07000460 - PVC PIPE SCHEDULE 40 700 LF $3.80 $2,660.00 T ELE-HP-150 - HOME PLATE BURY ALL 2 EA $150.21 $300.42 T STL2 - STEEL CONDUIT - NOT TO EXCEED 2" OD 475 LF $32.75 $15,556.25 T EWLGHT - ELECTRICAL WIRING - LIGHTING 475 LF $34.01 $16,154.75 T DUPOUT - DUPLEX OUTLET KIT 2 EA $41.97 $83.94 T
ELE-FBSLV5 - GROUND SLEEVES 20 EA $400.00 $8,000.00 T
6CANLED - 6" CAN LED LIGHT KIT 6 EA $83.94 $503.64 T
ELE-NET001 - NETTING SYSTEM 4500 EA $2.44 $10,980.00 T
ELM01CL001 - ELEMENTS GALVANIZED CHAIN LINK FENCING 325 EA $168.41 $54,733.25 T RMIXCON - READY MIX CONCRETE 5 CY $217.61 $1,088.05 T
CONPUM - CONCRETE PUMP 1 EA $409.06 $409.06 T
ELE-HABPM-100 - PITCHING MACHINE HACK ATTACK (BASEBALL 1 EA $4,563.54 $4,563.54 T SUNDRIES - SUNDRIES 6 EA $654.48 $3,926.88 T
7,100.80 0870.80 07,350.00 06,408.00 0746.08 0612.00 01,104.45 02,660.00 0300.42 015,556.25 016,154.75 083.94 08,000.00 0503.64 010,980.00 054,733.25 01,088.05 0409.06 04,563.54 03,926.88 011,094.273025 0 Sales Tax 11,094.27
Total Price $154,246.18
104
Initials
This is a legal agreement - please read carefully
Complete and Initial all pages Proposal Number P-0102531 4 CONDITIONS AND WARRANTY
1) Proposal:

The above proposal is valid for 30 days from the date first set forth above. After 30 days, we reserve the right to increase prices due to the rise in cost of raw materials, fuel or other cost increases. When applicable, KYA Services, LLC reserves the right to implement a surcharge for significant increases in raw materials, including, but not limited to; fuel, and materials. Due to the duration of time between proposals, contracts and final furnishing, KYA Services, LLCreserves the right to implement this surcharge when applicable.

Any job that is accepted prior to December 31st of the current year and scheduled to install after December 31st of the current year is subject to price increase. All project proposals based on a specific set/sets of plans are considered preliminary budgets and may be subject to pricing changes once the plans are approved by the relevant authority. 2) Purchase:

By executing this proposal, or submitting a purchase order pursuant to this proposal (which shall incorporate the terms of this agreement specifically by reference) which is accepted by KYA Services, LLC. (the “Company”), the purchaser identified above (“you” or the “Purchaser”) agrees to purchase the materials and the services to be provided by the “Company”, as detailed in the Pricing and “General Scope of Work” sections in this agreement, above.
3) Standard Exclusions:

Unless specifically included, this agreement does not include, and Company will not provide services, labor or materials for any of the following work: (a) removal or disposal of any material containing asbestos or any hazardous materials as defined by the EPA; neither we nor our installers are responsible for the handling, removal or abatement of asbestos contained floor material or adhesive. Further, our policy is to request an Asbestos Hazard Emergency Response Act (AHERA) report prior to proceeding with any floor material or floor adhesive removal. We and our installers consider it the owners responsibility to produce this report prior to executing this contract. (b) moving Owner’s property around the installation site. (c) repair or replacement of any Purchaser or Owner- supplied materials. (d) repair of concealed underground utilities not located on prints, supplied to Company by Owner during the bidding process, or physically staked out of by the Owner, and which are damaged during construction; or (e) repair of damage to existing surfaces that could occur when construction equipment and vehicles are being used in the normal course of construction.
4) Insurance Requirements:

Company is not required to provide any insurance coverage in excess of Company’s standard insurance. A copy of the Company’s standard insurance is available for your review prior to acceptance of the Company’s proposal. 5) Payment;
Terms of payment are defined in the “Pricing” details section and are specific to this contract. For purposes of this agreement, “Completion” is defined as being the point at which the materials have been furnished. In any event where Completion cannot be effected due to delays or postponements caused by the Purchaser or Owner, final payment (less 10% retainage) is due within 30 days of the date when the Completion was scheduled, had the delay not occurred. All payments must be made to KYA Services, LLC 1800 E.

McFadden Ave., Santa Ana, CA 92705. If the Purchaser or Owner fails or delays in making any scheduled milestone payments , the Company may suspend the fulfilment of its obligations hereunder until such payments are made, or Company may be relieved of its obligations hereunder if payment is more than 60 days past due. Company may use all remedies available to it under current laws, including but not limited to filing of liens against the property and using a collection agency or the courts to secure the collection of the outstanding debt. 6) Lien Releases:

Upon request by Owner, Company will issue appropriate partial lien releases as corresponding payments are received from Purchaser, but prior to receiving final payment from Purchaser or Owner, Company will provide a full release of liens upon receipt of final payment. In accordance with state laws, Company reserves the right to place a lien on the property if final payment has not been received 10 days prior to the filing deadline for liens.
7) Site Plan Approval, Permit/s, Permit Fees, Plans, Engineering Drawings and Surveying:

Site plan approval, permits, permit fees, plans, engineering drawings and surveying are specifically excluded from this agreement and the Services unless specified under the
“General Scope of Work”. The Company does not in any way warrant or represent that a permit or site plan approval for construction will be obtained. Sealed engineered drawings that are required but not included in the “General Scope of Work” will result in additional cost to Purchaser.
8) Manufacturing and Delivery:

Manufacturing lead-time and delivery varies depending on the product purchased. 105
Initials
This is a legal agreement - please read carefully
Complete and Initial all pages Proposal Number P-0102531 5 9) Returned Product, Deposits and/ or Cancelled Order:

From date of shipment from our facility, all returned product(s) and cancelled orders are subject to a 50% restocking fee. No returns are available following this date. All deposits are non-refundable. 10) Concealed Conditions:
“Concealed conditions” include, without limitation to, water, gas, sprinkler, electrical and sewage lines, post tension cables, and steel rebar.

Observations that were able to be made either by visual inspection or by drawings and/or plans submitted by Owner at the time this agreement was approved. If additional Concealed Conditions are discovered once work has commenced which were not visible at the time this proposal was approved, Company will stop work and indicate these unforeseen Concealed Conditions to Purchaser or Owner so that Purchaser and Company can execute a change order for any additional work. In any event, any damage caused by or to unforeseen Concealed Conditions is the sole responsibility of the Purchaser and Company shall not be held liable for any such damage. Soil conditions are assumed to be soil that does not contain any water, hard rock (such as limestone, caliche, etc.), rocks bigger than 4inches in diameter or any other condition that will require additional labor, equipment and/or materials not specified by the purchaser or Owner in the bidding process.

Any condition requiring additional labor, equipment, and/or materials to complete the drilling or concrete operations will require a change order before Company will complete the process. Any variation will incur additional charges. 11) Changes in the Work:

During the course of this project, Purchaser may order changes in the work (both additions and deletions). The cost of these changes will be determined by the Company, and a change order must be completed and signed by both the Purchaser and the Company, which will detail the “General Scope of the Change Order”. Should any change be essential to the completion of the project, and the Purchaser refuses to authorize such change order, then Company will be deemed to have performed its part of the project, and the project and Services will be terminated. Upon such termination, Company will submit a final billing to Purchaser for payment, less labor allowance for work not performed but including additional charges incurred due to the stoppage. No credit will be allowed for materials sold and supplied, which will remain the property of the Purchaser. 12) Warranty; Limitations of Liability:

Company warrants that all Company-supplied labor and Services will be performed in a good and workmanlike manner. Purchaser shall notify the Company in writing detailing any defects in Service for which a warranty claim is being made.

COMPANY SHALL NOT IN ANY EVENT BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR

LIQUIDATED DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT,

TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES

RELATING TO LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL COMPANY’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE FEES PAID OR DUE AND PAYABLE FOR THE SERVICE UNDER THIS AGREEMENT (OR RELEVANT PURCHASE ORDER).

The warranties or the materials are contained in a separate document between Company and the ultimate Owner of the materials, which will be provided to Owner at the time of completion of work. 13) Indemnification:

To the fullest extent permitted by law. Purchaser shall indemnify, defend and hold harmless the Company and its consultants, agents and employees or any of them from and against claims, damages, losses and expenses, including but not limited to attorney’s fees, relating to furnishing of the materials or performance of the Services, provided that such claim, damage, loss or expense is attributable to bodily injury to, sickness, disease or death of a person, or injury to or destruction of tangible property, but only to the extent caused by the negligent acts or omissions of the Purchaser or its agents, employees, or subcontractors or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge or reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in Section 13. 14) Delegation: Subcontractors:

The Services and furnishing of materials may be performed by subcontractors under appropriate agreements with the Company 106
Initials
This is a legal agreement - please read carefully
Complete and Initial all pages Proposal Number P-0102531 6 15) Force Majeure: Impracticability:

The Company shall not be charged with any loss or damage for failure or delay in delivering or furnishing of materials when such failure or delay is due to any cause beyond the control of the Company, due to compliance with governmental regulations, or orders, or due to any acts of God, lockouts, slowdowns, wars or shortages in transportation, materials or labor. 16) Dispute Resolution:

Any controversy or claim arising out of or related to this agreement must be settled by binding arbitration administered in CA, 92705 by a single arbitrator selected by the parties or by the American Arbitration Association, and conducted in accordance with the construction industry arbitration rules. Judgement upon the award may be entered in any court having jurisdiction thereof. 17) Entire Agreement; No Reliance:

This agreement represents and contains the entire agreement between the parties. Prior discussion or verbal representations by the parties that are not contained in this agreement are not part of this agreement. Purchaser hereby acknowledges that it has not received or relied upon any statements or representations by Company or its agents which are not expressly stipulated herein, including without limitation any statements as to the materials, warranties or services provided hereunder. 18) No Third-Party Beneficiaries:

This agreements creates no third party rights or obligations between Company and any other person, including any Owner who is not also a Purchaser. It is understood and agreed that the parties do not intend that any third party should be a beneficiary of this agreement. 19) Governing Law:

This agreement will be constructed and enforced in accordance with the laws of the State of California. 20) Assignment:

Purchaser may not assign this agreement, by operation of law or otherwise, without the prior written consent of the Company. The agreements shall be binding upon and ensure to the benefit of the Company and the Purchaser, and their successors and permitted assigns.

Executed to be effective as of the
date executed by the Company:

Accepted by:

KYA Services, LLC
Signature: Signature:

By: (Print) By: (Print)
Title: Title:

Date: Date:
107

CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 25-151 Meeting Date: 2/4/2025
TITLE:

PROFESSIONAL SERVICES AGREEMENT FOR ON-CALL STAFF SUPPORT FOR GENERAL

PLANNING SERVICES
DEPARTMENT: ECONOMIC AND DEVELOPMENT SERVICES DEPARTMENT/

PLANNING DIVISION
PRESENTED BY: ANNA MCGILL, PLANNING & SUSTAINABLE DEVELOPMENT MANAGER CONTACT INFORMATION: ANNA MCGILL, PLANNING & SUSTAINABLE DEVELOPMENT MANAGER, (714) 754-5609
RECOMMENDATION:

Staff recommends the City Council:

BACKGROUND:

The City’s Economic and Development Services Department seeks to establish agreements with consultants for on-call staff support for general and specialized planning services, in connection with medium to large development projects, as well as key policy projects. In 2024, the Department’s Planning Division established an advanced planning team focused on the development and implementation of the City’s long range planning programs including housing element implementation, implementing the City’s Affordable Housing Ordinance, processing the City’s advanced planning efforts such as the Rezone Program and Climate Action and Adaptation Plan,

Page 1 of 4 ends

108
File #: 25-151 Meeting Date: 2/4/2025
advanced planning efforts such as the Rezone Program and Climate Action and Adaptation Plan, monitoring and implementing state legislation and monitoring grant opportunities.

As the City continues to process and implement key advance planning projects, it is anticipated that the City will also begin to see medium and large scale housing projects submitted to the City for review. The Department requires the ability to quickly secure temporary additional resources to address major projects while maintaining daily customer service operations. The Department also relies on on-call general staffing for planning services in the event of vacancies, to ensure that the delivery of services continues uninterrupted.

On September 25, 2024, the City issued a Request for Proposals (RFP) for on-call staff support for general and specialized planning services. The RFP also requested environmental expertise to continue to facilitate City needs during entitlement review. City staff anticipates presenting an environmental specialized services on-call list to the City Council for consideration in Spring 2025.

ANALYSIS:

The City received eight proposals for general planning services. Proposals were screened for compliance with the City’sRFP, and proposals were evaluated based on the method of approach, qualifications, and experience, staffing and cost proposal. (Attachment 1) To ensure an objective selection process, an evaluation committee was assembled. All members evaluated proposals independently to assess qualifications and experience to address the City’s needs. Based on the City’scriteria and selection procedures set forth in the RFP, the evaluation committee recommended that agreements be awarded to the following eight (8) firms for staff support for general planning services:
· City Advisors, LLC
· Community Catalyst, Inc.
· Dudek
· Interwest Consulting Group, Inc
· Kimley-Horn and Associates, Inc.
· MIG, Inc.
· Placeworks, Inc.
· The Code Group, Inc.

Under the proposed agreements, on-call consultants will provide support for general planning services, at an hourly rate in accordance with their contracts. When the City requires services, City staff would contact one or more on-call consultants to secure a cost proposal and proposed staffing for the needed service.

Establishing on-call lists will allow the City to quickly pull in outside expertise for a variety of professional and technical expertise, as needed, in the following areas:
· General planning, including medium and large development project management and staffing support;
· Planning review of building permits, including reviewing and documenting project compliance

Page 2 of 4 ends

109
File #: 25-151 Meeting Date: 2/4/2025
· Planning review of building permits, including reviewing and documenting project compliance with Conditions of Approval and CEQA mitigation measures, ongoing site monitoring and inspection until project completion;
· Housing planning and analysis (including expertise on State Density Bonus Law, Affordable Housing Ordinance implementation, Housing Accountability Act, and other applicable housing and state legislation);
· Advanced planning;
· Economic analysis;
· Transportation and parking demand analysis;
· Geographic Information System (GIS) expertise/support; and · Urban design.

The proposed new on-call list provides the Department with the spectrum of expertise necessary to address the ongoing and anticipated advanced and current planning projects. An example Professional Services Agreement (PSA) has been attached for reference. (Attachment 2) Individual PSAs will be executed with each awarded firm.

ALTERNATIVES:

An alternative would be to not move forward with the contracts for on-call consulting services. Due to the volume of current and long-range planning projects being managed by the Planning Division, this could result in significant time delays.

FISCAL REVIEW:

Some of the cost of consultant services is paid for by the project applicants as a “pass-throughcost” and/or the City from the annual budget. Use of contract services are on an as-needed basis, and the cost of each service varies by subject and task.

For tasks that are not paid for by project applicants, funding for the professional services agreements are available within the Department’s existing approval budget. For Fiscal Year 2024-25, the Economic and Development Services Budget in the General Fund (Fund 101) has $275,000 through salary savings from the vacant Planning and Sustainable Development Manager, Principal Planner, and Associate Planner positions. For the remaining fiscal years of the contract, the Department will allocate funds from salary savings through position vacancies and/or through other department and/or citywide funding sources within the City Manager’s authority.

LEGAL REVIEW:

The attached sample PSA was prepared by the City Attorney’sOffice and the staff report has been reviewed and approved as to form.

Page 3 of 4 ends

110
File #: 25-151 Meeting Date: 2/4/2025
CITY COUNCIL GOALS AND PRIORITIES:

This item supports the following City Council Goals:
· Diversify, stabilize, and increase housing to reflect community needs. · Advance environmental sustainability and climate resiliency.

CONCLUSION:

Staff recommends the City Council approve and authorize the City Manager and City Clerk to execute a three-year Professional Service Agreements (PSA) with two one-year renewals for as- needed staff support for general planning services, as well as future amendments to those agreements so long as such amendments are within the annual budget.

Page 4 of 4 ends

111
RFP25.08.C06348

Page 1 of 35 ends

REQUEST FOR PROPOSAL
FOR

ON-CALL STAFF SUPPORT FOR GENERAL & SPECIALIZED PLANNING SERVICES RFP NO. 25-08

ECONOMIC AND

DEVELOPMENT SERVICES

DEPARTMENT

CITY OF COSTA MESA
Released on
September 25, 2024
ATTACHMENT 1
112
RFP25.08.C06348

Page 2 of 35 ends

REQUEST FOR PROPOSAL
FOR

ON-CALL STAFF SUPPORT FOR GENERAL & SPECIALIZED PLANNING SERVICES The City of Costa Mesa (hereinafter referred to as the “City”) is requesting Proposals from qualified consultants to provide professional on-call staff support for general & specialized planning services to assist the City’s Development Services Division. 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 term is expected to be for five years. 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 with an annual General Fund budget of over $189.9 million and a total budget of $240.10 million for fiscal year 2024-2025.

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 the South Coast Plaza Shopping Center, 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). Any City response relevant to this RFP other than through or approved by City’s Purchasing Department is unauthorized and will be considered invalid.
113
RFP25.08.C06348
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 Purchasing 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:

Release of RFP September 25, 2024
Deadline for Written Questions October 3, 2024, at 11:00 a.m.

Responses to Questions Posted October 9, 2024
Proposals are Due October 23, 2024, at 2:00 p.m.
**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 Scope of Work, Appendix A, 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 Proposer must have a Project Manager/Project Engineer assigned to the Contract with at least five (5) years of experience within the last 8 years, providing services equivalent or similar to the services identified in Scope of Work, Appendix A. The consultant assigned to the contract shall be a registered Civil Engineer or Traffic Engineer with the State of California, in good standing.
b
. The consultant must provide five references indicating a key role in the delivery of municipal projects of similar size and scope that have been completed within the last five years in California. Projects considered similar in scope include federally funded transportation design projects with construction bid documents for municipalities and agencies. The consultant shall have experience using the Local Assistance Procedures Manual and working on grant funded projects administered by Caltrans.
c.

The consultant shall have 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.

I
I. 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 12 typed pages using a 12-point font size, including cover letter, Index/Table of Contents, tables, charts, and graphic exhibits, but excluding resumes of key people 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.

Page 3 of 35 ends

114
RFP25.08.C06348

Page 4 of 35 ends

E
mphasis should be concentrated on conforming to the RFP 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:
 C over 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.  B ackground 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 Work, Appendix A of this RFP.  P roject Approach and Methodology: Provide a detailed description of the approach and methodology that will be used to fulfill each requirement listed in the Scope of Work of this RFP. The section should include:

1. Describes familiarity of project and demonstrates understanding of work and project objectives moving forward.

2. Detailed description of efforts your firm will undertake to achieve client satisfaction and to satisfy the requirements of the “Scope of Work” section.

3. Detailed project schedule, identifying all tasks and deliverables to be performed, durations for each task, and overall time of completion.

4. Identifies the project’s potential issues and response to them.

5. Proposers are encouraged to provide additional innovative and/or creative approaches for providing the service that will maximize efficient, safe, and cost- effective operations or increased performance capabilities.  Q ualifications & Experience of the Firm : Describe the qualifications and experience of the organization or entity performing services/projects within the past eight 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. Proposed team members, as demonstrated by enclosed resumes, have relevant experience for their role in the project.

3. Overall organization of the team is relevant to City of Costa Mesa needs.

4. Team is managed by an individual with appropriate experience in similar project. This person’s time is appropriately committed to this project. 115
RFP25.08.C06348

Page 5 of 35 ends

5 . Team structure provides adequate capability to perform both volume and quality of needed work within project schedule milestones.

6. If the owner is a corporation please provide: Name of corporation, corporate office street address, city, state, and zip code, state where incorporated, date of incorporation, first and last name of officers, local office address, city, state & zip, and the date local office opened its doors for business.

7. If the owner is a partnership or joint venture, please provide: Name of partnership or joint venture, principal office street address, city, state, and zip code, state of organization, date of organization, first and last name of general partner(s), local office address, city, state, and zip code, and date local office opened its doors for.

8. Provide a list of current and previous contracts similar to the requirements for this project in Costa Mesa, including all public agencies served (if any). For each, provide a brief description of the scope of work performed, the length of time you have been providing services, and the name, title, and telephone number of the person who may be contacted regarding your organization’s service record.

9. Submit a description of the organization’s qualifications, experience and abilities that make it uniquely capable to provide the services specified in the Scope of Work.  Fina ncial Capacity: The City is concerned about proposers’ financial capability to perform, and therefore, is requesting copies of audited financials from the pass three years to allow an evaluation of firm’s financial capabilities.
 K ey Personnel: It is essential that the Proposer provide adequate experienced personnel, capable of and devoted to the successful accomplishment of work to be performed under this contract. The Proposer must agree to assign specific individuals to the key positions. o Identify the members of the staff who would be assigned to act for Proposer’s firm in key management and filed positions providing the services described in the Proposal, and the functions to be performed by each.
o Include resumes or curriculum vitae of each such staff member, including name, position, telephone number, email address, education, and years and type of relevant experience.
 C ost Proposal: Provide a structured cost proposal in a separate cost file. The cost file shall include hourly rates of the proposed key personnel, inclusive of all anticipated applicable fees for the types of support described in this RFP.
 D isclosure: 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.  Sample Professional Service Agreement: The firm selected by the City will be required to execute a Professional Service Agreement with the City. A sample of the Agreement is enclosed as Appendix B, but may be modified to suit the specific services and needs of the 116
RFP25.08.C06348

Page 6 of 35 ends

C
ity. 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.
 C hecklist of Forms to Accompany Proposal: As a convenience to Proposers, following is a list of the forms, Appendix C 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:
 C ontent of Proposal: The Proposal must be submitted using the format as indicated in the Proposal format guidelines.
 P reparation 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.
 C ost 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.

Cost proposal shall be submitted in a separate file containing the following:
 Cover letter stating the hourly rates of the proposed key personnel.  The hourly rates will reflect all costs for office overhead, including direct and indirect costs.

The fee proposal shall reflect all anticipated fee increases during the contract duration.  Fo rms to Accompany Proposal: Appendix C forms shall be attached at the end of the Proposal with the exception of the Cost Proposal which shall be submitted in a separate file.  N umber of Proposals: Submit one (1) PDF file format copy of your proposal in sufficient detail for thorough evaluation and comparative analysis  S ubmission of Proposals: Complete written Proposals must be submitted electronically in PDF file format via the planetbids.com website not later than 2:00 p.m. (P.S.T) on October 23, 2024 . 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.
117
RFP25.08.C06348

Page 7 of 35 ends

 I nquiries: Questions about this RFP must be posted in the Q & A tab on Planetbids no later than October 3, 2024, 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 the Costa Mesa Procurement Registry, Costa Mesa-Official City Web Site, Business-Bids & RFP’s. 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.
 C onditions 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.
 I nsurance & 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:
 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 criterion may also be considered even if not specified below.

1. Project Approach & Methodology -------20 %

2. Qualifications & Experience of the Firm -------40 %

3. Key Personnel ----30%

4. Cost Proposal ----10 %
118
RFP25.08.C06348

Page 8 of 35 ends

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 an 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.

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 November 18th, and will be conducted at City of Costa Mesa City Hall, 77 Fair Drive, Costa Mesa, CA 92626. The dates are subject to change. The individual(s) from the 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. 119
RFP25.08.C06348

Page 9 of 35 ends

R
ecommendation 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.

Any proposals awarded pursuant to the formal procurement procedure set forth in the Proposal procedure may be appealed in accordance with the following procedure:
•The Proposer shall file the written notice of appeal with the purchasing officer at least ten (10) working days prior to proposal award date specified in the notice of recommendation to award.
• The written notice of appeal must include specifics as to the nature of the appeal. • The Proposer must provide any and all documentation to support the appeal. • The purchasing officer will respond in writing to the Proposer within five (5) working days.
• In the event the appeal is denied by the purchasing officer, the Proposer may appeal the purchasing officer’s ruling to the city council at the next available council meeting.

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 120
RFP25.08.C06348

Page 10 of 35 ends

d
isclosure 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.

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 C 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.
121
RFP25.08.C06348

Page 11 of 35 ends

1 1. 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 C.

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 contract shall follow the sample form of Agreement provided as Appendix B 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 based on 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 C.

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 via PlanetBids. Proposers should check this web page daily for new information. 122
RFP25.08.C06348

Page 12 of 35 ends

PPENDIX A

SCOPE OF WORK
FOR

ON-CALL STAFF SUPPORT FOR GENERAL & SPECIALIZED PLANNING SERVICES 123
RFP25.08.C06348

Page 13 of 35 ends

P
roject Context & Goals
The City of Costa Mesa (City), a California general law City, incorporated in 1953, under the laws of the State of California and is run by a council-manager form of government. The City has an estimated population of 115,000 and has a land aera 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 and safety regulation and inspection; street lighting; land use planning and zoning; housing and community development; maintenance and improvement of streets and related structure: traffic safety maintenance and improvement; and full range of recreational and cultural programs.

The City’s Economic and Development Services Department seeks to contract with qualified firms that can conduct on-call general and specialized planning services as necessary in support of the Department and the City. The City’s intent is to minimize response time and improve customer service by supplementing in house staff with consultants.

Purpose of RFP
The City is seeking to establish agreements with consultants for on-call general and specialized staffing, planning services, in connection with medium to large development projects as well as key policy projects. From time-to-time Economic and Development Services Department requires additional professional and technical expertise in the following areas:
 General planning, including moderate and large development project management and staffing support;
 Planning review of building permit, including reviewing and document a project’s compliance with Conditions of Approval and CEQA mitigation measures, ongoing site monitoring and inspection until project completion;
 Housing planning and analysis (including expertise on State Density Bonus Law, Affordable Housing Ordinance implementation, Housing Accountability Act and other applicable housing state legislation);
 Long-range planning;
 Economic analysis;
 Historic analysis;
 Transportation and parking demand analysis;
 Geographic Information System (GIS) expertise/support and webpage and technical webpage update support (including widgets and plugins);
 Urban design; and
 Environmental Review analysis expertise, such as reviewing EIRs across multiple projects and/or providing staffing expertise for CEQA questions. 124
RFP25.08.C06348
That a portion of the services could be provided either by an individual person or a firm. Each proposer should identify which technical expertise, or combination or technical expertise, for which they wish to be considered. The City will enter into one or more agreements with one or more firms depending on the range of applicants and expertise. It is not necessary that a single individual/firm be able to provide expertise in all identified areas.

Scope of Services
More generally, the City desires a high-level of professionalism and customer services to residents, businesses, contractors and non-profit organizations through continuity of on-call general and specialized planning services. The selected Consultant shall provide on-call general and specialized planning services of residential and non-residential projects, as well as policy initiatives, as requested by the City that fall under the areas of expertise noted in the “Purpose of RFP” section above. Such services shall include:
 Sufficient personnel, time and other resources to deliver on-call services that may arise with short notice, for a period up to five years.
 For General and Specialized Services, the Consultant shall o Perform for a specified number of hours as directed by the Project Administrator for Complex Development projects.
o Provide experience in managing complex development projects, both residential and commercial, which may include General Plan Amendments, Rezones, Masterplan Development Permits or Amendments, Specific Plan Conformity Review/Amendments, Conditional Use Permit, Architectural Permits, Tentative Maps, Wireless/RF Emissions studies, etc.
o Knowledge of California Environmental Quality Act (CEQA), basic planning law, Brown Act and public notice requirements, etc.
 For Specialized Knowledge, the Consultant shall:
o Provide a specified number of hours as directed by the Project Administrator with specialized knowledge in preparation of housing planning and analysis, economic analysis, historic analysis or urban design principles for public and private projects. o Possess the ability to communicate effectively, meet schedules, coordinate activities with multiple parties, work closely and collaboratively with in-house staff and adhere to schedule limitations.
o Proficiency in preparing for and conducting community meetings, writing staff report with minimal oversight and preparing/making presentations to decision-making bodies. o On complex projects, servicing as a liaison to coordinate and monitor responses to requests from the City Manager’s Office and/or decision-making bodies, including providing staff guidance and ensuring comprehensive and timely communication. o Offering strategi advice and coordination support for long-range planning efforts and specialized project, ensuring alignment with community goals and departmental objectives.

Personnel Qualifications
Consultant shall utilize trained and qualified staff to provide the Service s under thi s Agreement, consistent with the following terms:

Page 14 of 35 ends

RFP25.08.C06348

Page 15 of 35 ends


Standard of Performance: All employees working directly for the Consultant shall be properly trained and thoroughly experienced in any type of work they perform. The Consultant shall be responsible for the behavior of their employees.
 Sufficient Personnel: Consultant shall provide sufficient personnel, time and other resources to deliver on call services that may arise with short notice, for a period of up to five years.  Assignment of Personnel: If requested by the project administrator, the Consultant shall provide a list to the Project Administrator of all employees that perform work for the City. In the event that the City, at any time during the term of the Agreement, desires the reassignment of personnel, Consultant shall reassign such person or persons. Except where mutually agreed upon, such reassignment, shall not affect the Consultant’s obligation to timely provide Services under the Agreement.
 Proximity: Ability to travel easily to Costa Mesa, if needed, for the purposes of conducting work, meetings, public hearings and/or stakeholders gatherings. If additionally requested, ability to join Zoom and Teams meetings.
 Evening Meetings: Capacity to work outside normal business hours such as occasional evening public meetings.

Assignment of Work
The City shall prepare a Purchase Order that includes a scope of work for each individual project request. The Scope shall include a list of required tasks and time frame for deliverables. Typically, tasks will include review of project information, evaluation of potential environmental impacts, and preparation of required documents.

Scopes for individual projects shall be sent to the consultant with a deadline for response. In the response, the consultant will include the staff resources they can commit to the project, estimated timeline and cost for provision of services.

The City will evaluate the proposal, and, if it chooses, accept the proposal and initiate work. Prior to the start of work on Services, the City and Consultant shall establish specific performance measures and expectations to the satisfaction of the City.
126
RFP25.08.C06348

APPENDIX B
SAMPLE

PROFESSIONAL SERVICE 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 propose s to utilize the service s of Consultant a s 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 Cit y 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 agree s to perform all the wor k to the complete satisfaction of the City and within the hereinafter specified. Evaluations of the work will be

Page 16 of 35 ends

RFP25.08.C06348
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
(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

Page 17 of 35 ends

RFP25.08.C06348
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.

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.

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.

Page 18 ends

of 35 129
RFP25.08.C06348

Page 19 of 35 ends

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), 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 130
RFP25.08.C06348

Page 20 of 35 ends

t
hree 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.

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 131
RFP25.08.C06348
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: _________________
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.

Page 21 of 35 ends

RFP25.08.C06348

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 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

Page 22 ends

of 35 133
RFP25.08.C06348
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

Page 23 ends

of 35 134
RFP25.08.C06348
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 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 emplo y any regular employee of Cit y 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.

Page 24 ends

of 35 135
RFP25.08.C06348

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 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.

Page 25 ends

of 35 136
RFP25.08.C06348

Page 26 of 35 ends

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
137
RFP25.08.C06348

Page 27 of 35 ends

APPENDIX C
FORMS
Vendor Application Form
Ex Parte Communications Certification
Disclosure of Government Positions
Disqualification Questionnaire
Company Profile & References
Bidder/Applicant/Contractor Campaign Contribution
138
RFP25.08.C06348

Page 28 of 35 ends

VENDOR APPLICATION FORM
FOR
RFP No. 25-08 ON-CALL STAFF SUPPORT FOR GENERAL & SPECIALIZED PLANNING

SERVICES
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 I
s your business: (check one)
 CORPORATION  LIMITED LIABILITY PARTNERSHIP
 INDIVIDUAL  SOLE PROPRIETORSHIP
 PARTNERSHIP  UNINCORPORATED ASSOCIATION
139
RFP25.08.C06348

Page 29 of 35 ends

N
ames & 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: ________________________________ 140
RFP25.08.C06348

Page 30 of 35 ends

X PARTE COMMUNICATIONS CERTIFICATION
Please indicate by signing below one of the following two statements. Only sign one statement.

I certify that Proposer and Proposer’s representatives have not had any communication with a City Councilmember concerning informal RFP No. 25-08 ON-CALL STAFF SUPPORT FOR GENERAL & SPECIALIZED PLANNING SERVICES at any time after September 25, 2024. ________________________________ Date: _______________________ Signature
________________________________
Print
OR
I certify that Proposer or Proposer’s representatives have communicated after September 25, 2024 with a City Councilmember concerning informal RFP No. 25-08 ON-CALL STAFF SUPPORT FOR GENERAL & SPECIALIZED PLANNING SERVICES. A copy of all such communications is attached to this form for public distribution.
________________________________ Date: _______________________ Signature
________________________________
Print
141
RFP25.08.C06348

Page 31 of 35 ends

DISQUALIFICATION QUESTIONNAIRE
The Contractor shall complete the following questionnaire:

Has the Contractor, any officer of the Contractor, or any employee of the Contractor who has proprietary interest in the Contractor, ever been disqualified, removed, or otherwise prevented from bidding on, or completing a federal, state, or local government project because of a violation of law or safety regulation?
Yes _____ No _____
If the answer is yes, explain the circumstances in the following space. 142
RFP25.08.C06348

Page 32 of 35 ends

DISCLOSURE OF GOVERNMENT POSITIONS
Each Proposer shall disclose below whether any owner or employee of Contractor 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. List below or state "None." 143
RFP25.08.C06348

Page 33 of 35 ends

COMPANY PROFILE & REFERENCES
Company Legal Name:

Company Legal Status (corporation, partnership, sole proprietor etc.):

Active licenses issued by the California State Contractor’s License Board:

Business Address:

Website Address:

Telephone Number: Facsimile Number:

Email Address:

Length of time the firm has been in business:

Length of time at current location:

Is your firm a sole proprietorship doing business under a different name: ___Yes ___No If yes, please indicate sole proprietor’s name and the name you are doing business under:

Federal Taxpayer ID Number:

Regular Business Hours:

Regular holidays and hours when business is closed:

Contact person in reference to this solicitation:

Telephone Number: Facsimile Number:

Email Address:

Contact person for accounts payable:

Telephone Number: Facsimile Number:

Email Address:

Name of Project Manager:

Telephone Number: Facsimile Number:

Email Address:
144
RFP25.08.C06348

Page 34 of 35 ends

COMPANY PROFILE & REFERENCES (Continued)
Submit the company names, addresses, telephone numbers, email, contact names, and brief contract descriptions of at least three clients, preferably other municipalities for whom comparable projects have been completed or submit letters from your references which include the requested information.

Company Name:

Contact Name:

Contract Amount:

Email:

Address:

Brief Contract Description:

Company Name:

Telephone Number:

Contact Name:

Contract Amount:

Email:

Address:

Brief Contract Description:

Company Name:

Telephone Number:

Contact Name:

Contract Amount:

Email:

Address:

Brief Contract Description:

Company Name:

Telephone Number:

Contact Name:

Contract Amount:

Email:

Address:

Brief Contract Description:

Company Name:

Telephone Number:

Contact Name:

Contract Amount:

Email:

Address:

Brief Contract Description:
145
RFP25.08.C06348

Page 35 of 35 ends

BIDDER/APPLICANT/CONTRACTOR CAMPAIGN CONTRIBUTION

DISCLOSURE FORM
Proposer/Consultant/Applicant is required to identify any campaign contribution or cumulative contributions greater than $249 to any city council member in the twelve months prior to submitting an application, proposal, statement of qualifications or bid requiring approval by the City Council.

Date Name of Donor
Company/Business
Affiliation
Name of
Recipient Amount
Except as described above, I/we have not made any campaign contribution in the amount of $250 or more to any Costa Mesa City Council Member in the twelve months preceding this Application/Proposal.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Bidder/Applicant/Proposer
Date
146
1 Amber Gregg, Inc.

Rev. 2-2024

CITY OF COSTA MESA

PROFESSIONAL SERVICES AGREEMENT
WITH AMBER GREGG, INC.

THIS
PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 4th day of February 2025 (“Effective Date”), by and between the CITY OF COSTA MESA, a municipal corporation (“City”), and AMBER GREGG , INC., a California corporation (“Consultant”).

RECI
TALS
A. Ci
ty proposes to utilize the services of Consultant as an independent contractor to perform on-call staff support for general and specialized planning services, as more fully described herein; and
B. Cons
ultant represents that it has that degree of specialized expertise contemplated within California Government Code s ection 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and
C. Ci
ty 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 offi
cial 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.

NO
W, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:

1.0. SER

VICES PROVIDED BY CONSULTANT

1.1. S
cope 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. P
rofessional 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. P
erformance 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 w
ith Consultant to review the quality of the work and resolve the matters of concern;
ATTACHMENT 2
147
2 Amber Gregg, Inc.

Rev. 2-2024

(b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/or

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, e xcept as permitted pursuant to s ection 12940 of the Government Code.

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.

2.2. Additional Services. Consultant shall not receive compensation for any services 148
3 Amber Gregg, Inc.

Rev. 2-2024

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.

2.4. 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. Said services shall be performed in strict compliance with the Project Schedule approved by City as set forth on page 6, Section 3 of Exhibit “B,” attached hereto and incorporated herein. 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, 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 p arties 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 p arty 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.

149
4 Amber Gregg, Inc.

Rev. 2-2024

4.0. TERM AND TERMINATION

4.1. Term. This Agreement shall commence on the Effective Date and continue for a period of sixty-four (64) months, ending on June 30, 2030, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties.

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

(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.

Rev. 2-2024

(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 ins urance 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.

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. 151
6 Amber Gregg, Inc.

Rev. 2-2024

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 C ity 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.

6.3. Project Managers. City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement.

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:

Amber Gregg, Inc.
34818 Calle Del Sol
Capistrano Beach, CA 92624
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Tel: (949) 565-5484 Tel: (714) 754-5609
Attn: Amber Gregg, CEO

Attn: Anna McGill

152
7 Amber Gregg, Inc.

Rev. 2-2024

Courtesy copy to:

City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Attn: Finance Dept. | Purchasing

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 . If 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.

6.8. 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 negligent 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 negligence of 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 153
8 Amber Gregg, Inc.

Rev. 2-2024

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.

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 Conflicts with Independent Contractor. Contractor/consultant’s duties and services under this Agreement shall not include preparing or assisting the public entity with any portion of the public entity’s preparation of a request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with the public entity. The public entity entering into this Agreement shall at all times retain responsibility for public contracting, including with respect to any subsequent phase of this project. Contractor/consultant’s participation in the planning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications. Contractor/consultant shall cooperate with the public entity to ensure that all bidders for a subsequent contract on any subsequent phase of this project have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by contractor pursuant to this Agreement.

6.12. 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.

Rev. 2-2024

any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.

6.13. 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.

6.14. 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 once payment has been received by Consultant. 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.

6.15. 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 s ection 7920.000 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 7924.510, 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.

6.16. 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 s ection 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.

6.17. 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 155
10 Amber Gregg, Inc.

Rev. 2-2024

the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction.

6.18. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect.

6.19. 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.

6.20. 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.

6.21. Binding Effect. This Agreement binds and benefits the parties and their respective permitted successors and assigns.

6.22. 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.

6.23. 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.

6.24. 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.

6.25. Amendments . Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.

6.26. 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.

6.27. Severability. If any provision of this Agreement is determined by a court of 156
11 Amber Gregg, Inc.

Rev. 2-2024

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.

6.28. 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.

6.29. 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.

[Signatures appear on following page.]
157
12 Amber Gregg, Inc.

Rev. 2-2024
I N 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.

NSULTANT
__________________________________
Date: __________________________
Signature
__________________________________

Amber Gregg, CEO
C

ITY OF COSTA MESA
_________________________________
_ Date: __________________________
Lori Ann Farrell Harrison
City Manager
AT
TEST:
__________________________________

Brenda Green
City Clerk
APPR
OVED AS TO FORM:
__________________________________
Date: __________________________
Kimberly Hall Barlow
City Attorney
APPR
OVED AS TO INSURANCE:
__________________________________
Date: __________________________
Ruth Wang
Risk Management
158
13 Amber Gregg, Inc.

Rev. 2-2024
D
ate: __________________________
D
ate: __________________________
D
ate: __________________________
APPROVED AS TO CONTENT:
__________________________________
Anna McGill
Project Manager
DEPARTMENTAL APPROVAL:
__________________________________
Carrie Tai
Economic and Development Services Director
APPROVED AS TO PURCHASING:
__________________________________
Carol Molina
Finance Director
159

CITY OF COSTA MESA
Agenda Report
77 Fair Drive
Costa Mesa, CA 92626
File #: 25-147 Meeting Date: 2/4/2025
TITLE:

AWARD OF THE GREENVILLE-BANNING CHANNEL HYDRODYNAMIC SEPARATOR (HDS) INSTALLATION PROJECT, CITY PROJECT NO. 25-02
DEPARTMENT: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION PRESENTED BY: RAJA SETHURAMAN, PUBLIC WORKS DIRECTOR
CONTACT INFORMATION: SEUNG YANG, P.E., CITY ENGINEER (714) 754-5335 RECOMMENDATION:

Staff recommends the City Council:

2. Award a Public Works Agreement (PWA) for construction to the Zusser Company, Inc., 528 Palisades Drive, Suite 504, Los Angeles, California 90272 in the amount of $811,750 (base bid and additive bid) and authorize an additional ten percent (10%) contingency, in the amount of $81,175 for construction, as needed, for any unforeseen costs related to this project.

3. Authorize the City Manager and City Clerk to execute the PWA with the Zusser Company, Inc., and future amendments to the agreements within Council authorized limits.

4. Authorize $270,280 from the Westside Storm Drain Improvements Project (550022) to supplement the remaining costs of this 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.

BACKGROUND:

This project is included in the City’sCapital Improvement Program with the title “Placentia Avenue Stormwater Quality Trash Full-Capture System.” This trash capture system and stormwater quality improvement involves the construction of a Hydrodynamic Separator (HDS) unit that would separate

Page 1 of 3 ends

160
File #: 25-147 Meeting Date: 2/4/2025
improvement involves the construction of a Hydrodynamic Separator (HDS) unit that would separate trash from stormwater in order to meet National Pollutant Discharge Elimination System (NPDES) requirements. During design of the project, it was determined that the ideal placement of the system would be on the premises of the Costa Mesa Country Club (CMCC), next to the outfall of an existing County of Orange storm drain facility. CMCC is a city-owned golf course facility and was consulted during the design process. The HDS unit is designed for construction on the western boundary of the property.

The storm drain line conveys runoff from a drainage area consisting of various high-priority land uses, such as high-density residential, industrial, commercial, and mixed-urban areas in the local vicinity south of Fairview Park. The HDS unit is intended to capture storm runoff from these high- priority areas and treat the runoff for trash and pollutants before allowing treated stormwater to reach downstream water bodies.

While applying for funding from the Orange County Transportation Authority’s (OCTA’s) Environmental Cleanup Program (ECP) Tier 1 (Project X) grant, the project was renamed to Greenville-Banning Channel HDS Installation Project. Greenville-Banning Channel, adjacent to the Santa Ana River, receives the stormwater prior to dumping into the ocean.

The contractor will be required to complete all the tasks necessary to perform the scope of work as outlined in the contract documents, plans, and specifications. A copy of specifications and working details are available for review in the Office of the City Clerk.

ANALYSIS:

The City Clerk received and opened five (5) bids for this project on November 12, 2024. Zusser Company, Inc. (Zusser) is the apparent low bidder with a base bid proposal of $789,750. The average of the six (6) bids received amounted to $943,072. The bid abstract for this project is included as Attachment 1.

The license and references for Zusser have been checked and staff has found them to be in good standing.

Zusser has successfully completed similar projects in other cities including the Barnes Park Multi- Benefit Stormwater Capture Project in the City of Baldwin Park, West Hollywood Pan Pacific Western Basin Diversion for the County of Los Angeles Public Works, and the John Anson Ford Park Infiltration Cistern in the City of Bell Gardens.

Upon City Council award of the PWA (Attachment 2), Zusser Company, Inc. will furnish the necessary bonds for the project. After the award and subsequent execution of the agreement, a “Notice to Proceed” will be issued.

ALTERNATIVES:

The City Council could reject all bids, re-advertise, and re-bid the project for construction. However, this alternative is not recommended as staff has determined that it will not result in lower bids and will

Page 2 of 3 ends

161
File #: 25-147 Meeting Date: 2/4/2025
delay the project.

FISCAL REVIEW:

This project was approved by City Council during the Fiscal Year 2024-25 Operating and Capital Improvement Budget. Funding for this agreement is available in the OCTA’sEnvironmental Cleanup Program (ECP) Tier 1 (Project X) Measure M2 grant fund (Fund 415) in the amount of $497,645 and the City’sDrainage Fund (Fund 209) in the amount of $125,000. Staff recommends the City Council authorize an additional transfer of $270,280 from the Westside Storm Drain Improvements Project (550022) in the Drainage Fund (Fund 209) to supplement the remaining amount.

LEGAL REVIEW:

The City Attorney’sOffice has reviewed this agenda report, prepared the PWA, and approves them 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.

CONCLUSION:

Staff recommends the City Council:

2. Award a Public Works Agreement (PWA) for construction to the Zusser Company, Inc., 528 Palisades Drive, Suite 504, Los Angeles, California 90272 in the amount of $811,750 (base bid and additive bid) and authorize an additional ten percent (10%) contingency, in the amount of $81,175 for construction, as needed for any unforeseen costs related to this project.

3. Authorize the City Manager and City Clerk to execute the PWA with the Zusser Company, Inc., and future amendments to the agreements within Council authorized limits.

4. Authorize $270,280 from the Westside Storm Drain Improvements Project (550022) to supplement the remaining costs of this project.

Page 3 of 3 ends

162
ATTACHMENT 1
City Total Base Bid Total Base Bid +
Alternative Bid
LOS ANGELES $789,750.00 $811,750.00
IRVINE $857,033.00 $897,814.00
ORANGE $957,000.00 $987,700.00
LAWNDALE $1,050,000.00 $1,184,500.00
CORONA $1,061,575.00 $1,081,925.00
$943,071.60 $992,737.80

CITY OF COSTA MESA

BID RESULTS
BID OPENING: NOVEMBER 12, 2024

PUBLIC WORKS DEPARTMENT

GREENVILLE-BANNING CHANNEL HYDRODYNAMIC SEPARATOR (HDS) INSTALLATION PROJECT, CITY PROJECT NO. 25-02

AVERAGE
Bidder

4. CLARKE CONTRACTING CORPORATION

5. MATCON GENERAL ENGINEERING, INC.

1. ZUSSER COMPANY, INC.

2. BIG BEN, INC.

3. HZS ENGINEERING AND CONSTRUCTION
163
1 CITY OF COSTA MESA
PUBL

IC WORKS AGREEMENT FOR
CITY PROJECT NO. 25-02
T
HIS PUBLIC WORKS AGREEMENT (“Agreement”), dated February 4 th, 2025 (“Effective Date”), is made by the CITY OF COSTA MESA, a political subdivision of the State of California (“CITY”), and ZUSSER COMPANY, INC., a California corporation (“CONTRACTOR”).

W
HEREAS, CITY desires to construct the public improvements described below under Paragraph 1, Scope of Work (the “Project”); and
W
HEREAS, CITY has determined that CONTRACTOR is the lowest responsible bidder; and
W
HEREAS, CITY now desires to contract with CONTRACTOR to furnish construction and related services for the Project; and
W
HEREAS, CITY and CONTRACTOR desire to set forth their rights, duties and liabilities in connection with the services to be performed.

N
OW, THEREFORE, for and in consideration of the covenants and conditions contained herein, the parties hereby agree as follows:

1. SCOPE O F WORK.

The s
cope of work generally consists of installing a hydrodynamic separator (HDS) system off the City’s existing 72 -inch RCP storm drain that conveys storm water from Placentia Blvd. through the Costa Mesa Golf Course and into the Orange County Flood Control District’s (“OCFCD”) Fairview Channel (“OCFCD Facility-D04”), (the “Work”).

The W
ork is further described in the “Contract Documents” referred to below.

The P
roject is known as the Greenville- Banning Channel and Santa Ana River HDS Installation Project, City Project No. 25-02 (the “Project”).

2. CONTRACT DOCUMENTS.

The c
omplete Agreement consists of the following documents relating to the Project:
(a) This Agreement;
(
b) CONTRACTOR’s bid, attached hereto as Exhibit A and incorporated herein; (
c) Bid package , including, but not limited to, notice inviting bids, complete ATTACHMENT 2
164
Project and Specification No. 25-02
2 plans, profiles, detailed drawings and specifications, general provisions and special provisions. The bid package is attached hereto as Exhibit B and incorporated herein;
(
d) Faithful Performance Bond and Labor and Material Bond, including agent’s Power of Attorney for each bond, attached hereto as Exhibit C; (
e) Drug-Free Workplace Policy, attached hereto as Exhibit D and incorporated herein; and
(f) P
rovisions of the most current edition of The Greenbook: Standard Specifications for Public Works Construction (“The Greenbook”). Provisions of The Greenbook are incorporated by this reference as if fully set forth herein.

The doc
uments comprising the complete Agreement will be referred to as the “Contract Documents.”
A
ll of the Contract Documents are intended to complement one another, so that any Work called for in one and not mentioned in another is to be performed as if mentioned in all documents.

I
n the event of an inconsistency in the Contract Documents, the terms of this Agreement shall prevail over all other Contract Documents. The order of precedence between the remaining Contract Documents shall be as set forth in The Greenbook.

The C
ontract Documents constitute the entire agreement between the parties and supersede any and all other writings and oral negotiations.

3. CITY’S REPRESENTATIVE.

The C
ITY’s Representative is Elena Polyakova, referred to herein as the Project Manager (“Project Manager”).

4. CONT RACTOR’S PROJECT MANAGER; PERSONNEL.
(a) P roject Manager. CONTRACTOR’s Project Manager must be approved by City. Such approval shall be at CITY’s sole discretion. (b) P ersonnel. CITY has the right to review and approve any personnel who are assigned to perform work under this Agreement. CONTRACTOR shall remove personnel from performing work under this Agreement if requested to do so by CITY.

This
Paragraph 4 is a material provision of the Agreement.

5. SCHEDULE.

ATTACHMENT 2
165
Project and Specification No. 25-02
3 A
ll Work shall be performed in accordance with the schedule approved on behalf of CITY by the Project Manager, and in accordance with the time of performance set forth in Paragraph 11 (Time of Performance).

6. EQUIPMENT - PERFORMANCE OF WORK.

C
ONTRACTOR shall furnish all tools, equipment, apparatus, facilities, labor and materials necessary to perform and complete the Work in a good and workmanlike manner in strict conformity with the Contract Documents.

The equi
pment, apparatus, facilities, labor and material shall be furnished and such Work performed and completed as required in the plans and specifications to the satisfaction of the Project Manager or his or her designee, and subject to his or her approval.

7. COMPENSATION.

C
ITY shall pay CONTRACTOR in accordance with the fee schedule set forth in CONTRACTOR’s bid. CONTRACTOR’s total compensation shall not exceed Eight Hundred Eleven Thousand Seven-Hundred Fifty Dollars ($811,750.00).

8. ADDIT IONAL SERVICES.

C
ONTRACTOR shall not receive compensation for any services provided outside the scope of the Contract Documents unless such additional services, including change orders, are approved in writing by CITY prior to CONTRACTOR performing the additional services.

I
t is specifically understood that oral requests or approvals of such additional services, change orders or additional compensation and any approvals from CITY shall be barred and are unenforceable.

9. PAYMENTS TO CONTRACTOR.

O
n or before the last Monday of each and every month during the performance of the Work, CONTRACTOR shall meet with the Project Manager or his or her designee to determine the quantity of pay items incorporated into the improvement during that month.

A “Progress Payment Order” will then be jointly prepared, approved, and signed by the Project Manager and the CONTRACTOR setting forth the amount to be paid and providing for a five percent (5%) retention. Upon approval of the progress payment order by the Project Manager, or his or her designee, it shall be submitted to CITY’s Finance Department and processed for payment by obtaining approval from the City Council to issue a warrant.

W
ithin three (3) days following City Council’s approval to issue a warrant, CITY ATTACHMENT 2
166
Project and Specification No. 25-02
4 shall mail to CONTRACTOR a warrant for the amount specified in the progress payment order as the amount to be paid. The retained five percent (5%) shall be paid to CONTRACTOR thirty-five (35) days after the recording of the Notice of Completion of the Work by the CITY with the Orange County Clerk-Recorder and after CONTRACTOR has furnished releases of all claims against CITY by persons who furnished labor or materials for the Work, if required by CITY.

U
pon the request of CONTRACTOR and at its expense, securities equivalent to the amount withheld pursuant to the foregoing provisions may be presented to CITY for substitution for the retained funds. If CITY approves the form and amount of the offered securities it will release the retained funds and will hold the securities in lieu thereof.

CONTRACTOR shall be entitled to any interest earned on the securities.

I
n the event that claims for property damage or bodily injury are presented to CITY arising out of CONTRACTOR’s or any subcontractor’s work under this Agreement, CITY shall give notice thereof to CONTRACTOR, and CONTRACTOR shall have thirty-five (35) days from the mailing of any such notice to evaluate the claim and to settle it by whole or partial payment, or to reject it, and to give notice of settlement or rejection to CITY. If CITY does not receive notice within the above-mentioned 35-day period that the claim has been settled, and if the Project Manager, after consultation with the City Attorney, determines that the claim is meritorious, CITY may pay the claim or a portion of it in exchange for an appropriate release from the claimant, and may deduct the amount of the payment from the retained funds that would otherwise be paid to CONTRACTOR upon completion of the Work; provided, however, that the maximum amount paid for any one claim pursuant to this provision shall be One Thousand Dollars ($1,000.00), and the maximum amount for all such claims in the aggregate paid pursuant to this provision shall be Five Thousand Dollars ($5,000.00).

10. PROM PT PAYMENT OF SUBCONTRACTORS.

C
ONTRACTOR agrees to pay each subcontractor under this Agreement for satisfactory performance of its contract no later than seven (7) days from the receipt of each payment the CONTRACTOR receives from CITY.

C
ONTRACTOR agrees further to release retainage payments to each subcontractor within thirty (30) days after the subcontractor’s work is satisfactorily completed.

A
ny delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the CITY.

11. TI ME OF PERFORMANCE.

C
ONTRACTOR shall commence Work by the date specified in CITY’s Notice to Proceed, unless a later date is agreed upon in writing by the parties. The Work shall be completed within Thirty (30) working/calendar days from the first day of commencement ATTACHMENT 2
167
Project and Specification No. 25-02
5 of the Work.

12. TERMINATION.
(
a) Termination for Convenience. CITY may terminate this Agreement at any time, with or without cause, by providing thirty (30) days’ written notice to CONTRACTOR.
(
b) Termination for Breach of Contract.
(
i) If CONTRACTOR refuses or fails to prosecute the Work or any severable part of it with such diligence as will ensure its timely completion, or if CONTRACTOR fails to complete the Work on time, or if CONTRACTOR, or any subcontractor, violates any of the provisions of the Contract Documents, the Project Manager may give written notice to CONTRACTOR and CONTRACTOR’s sureties of the CITY’s intention to terminate this Agreement; and, unless within five (5) days after the serving of that notice, such conduct shall cease and arrangements for the correction thereof be made to the satisfaction of the CITY, this Agreement may be terminated at the option of CITY effective upon CONTRACTOR’s receipt of a second notice sent by the CITY indicating that the CITY has exercised its option to terminate.
(
ii) If CONTRACTOR is adjudged bankrupt or files for any relief under the Federal Bankruptcy Code or State insolvency laws, this Agreement shall automatically terminate without any further action or notice by CITY. (
iii) If CONTRACTOR is in breach of any material provision of this Agreement, CITY may immediately terminate this Agreement by providing written notice to CONTRACTOR of same.

13. LIQUIDATED DAMAGES.

I
n the event the W ork is not completed, for any reason, within the time required including any approved extensions of time, and to the satisfaction of the Project Manager, CITY may, in addition to any other remedies, equitable and legal, including remedies authorized by Paragraph 12 (Termination) of this Agreement, charge to CONTRACTOR or its sureties, or deduct from payments or credits due CONTRACTOR, a sum equal to One Thousand Nine Hundred Dollars ($1,900.00)/day as liquidated damages for each calendar day beyond the date provided for the completion of such work.

The par
ties hereto agree that the amount set forth above, as liquidated damages constitutes a fair and reasonable estimate of the costs the CITY would suffer for each day that the CONTRACTOR fails to meet the performance schedule. The parties hereby agree and acknowledge that the delays in the performance schedule will cause CITY to incur costs and expenses not contemplated by this Agreement.

ATTACHMENT 2
168
Project and Specification No. 25-02
6 14. PERF ORMANCE BY SURETIES.

In the event CONTRACTOR fails or refuses to perform the Work, CITY may provide CONTRACTOR with a notice of intent to terminate as provided in Paragraph 12 (Termination), of this Agreement. CITY shall immediately give written notice of such intent to terminate to CONTRACTOR and CONTRACTOR’s surety or sureties, and the sureties shall have the right to take over and perform this Agreement; provided, however, that the sureties must, within five (5) days after CITY’s giving notice of termination, (a) give the CITY written notice of their intention to take over the performance of this Agreement; (b) provide adequate assurances, to the satisfaction of the CITY, that the Work shall be performed diligently and in a timely manner; and (c) must commence performance thereof within five (5) days after providing notice to the CITY of their intention to take over the Work. Upon the failure of the sureties to comply with the provisions set forth above, CITY may take over the Work and complete it, at the expense of CONTRACTOR , and the CONTRACTOR and the sureties shall be liable to CITY for any excess costs or damages including those referred to in Paragraph 13 (Liquidated Damages), incurred by CITY. In such event, CITY may, without liability for so doing, take possession of such materials, equipment, tools, appliances, Contract Documents and other property belonging to CONTRACTOR as may be on the site of the Work and reasonably necessary therefor and may use them to complete the Work.

15. DI
SPUTES PERTAINING TO PAYMENT FOR WORK.

Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the Work done, or of any Work omitted, or of any extra Work which CONTRACTOR may be required to do, or respecting any payment to CONTRACTOR during the performance of this Agreement, such dispute shall be decided by the Project Manager, and his or her decisions shall be final and binding upon CONTRACTOR and its sureties.

16. SUP
ERINTENDENCE BY CONTRACTOR.

At all times during performance of the Work, CONTRACTOR shall give personal superintendence or have a competent foreman or superintendent on the worksite, with authority to act for CONTRACTOR.

17. I
NSPECTION BY CITY.

CONTRACTOR shall at all times maintain proper facilities and provide safe access for inspection by CITY to all parts of the Work and to all shops on or off -site where the Work or portions of the Work, are in preparation. CITY shall have the right of access to the premises for inspection at all times. However, CITY shall, at all times, comply with CONTRACTOR’s safety requirements on the job site.

18. CAR
E OF THE WORK AND OFF-SITE AUTHORIZATION.

ATTACHMENT 2
169
Project and Specification No. 25-02
7 CONTRACTOR warrants that it has examined the site of the Work and is familiar with its topography and condition, location of property lines, easements, building lines and other physical factors and limitations affecting the performance of this Agreement.

CONTRACTOR, at CONTRACTOR’s sole cost and expense, shall obtain any permission, and all approvals, licenses, or easements necessary for any operations conducted off the premises owned or controlled by CITY. CONTRACTOR shall be responsible for the proper care and protection of all materials delivered to the site or stored off -site and for the Work performed until completion and final inspection and acceptance by CITY. The risk, damage or destruction of materials delivered to the site or to Work performed shal l be borne by CONTRACTOR.

19. CO
NTRACT SECURITY AND GUARANTEE.

CONTRACTOR shall furnish, concurrently with the execution of this Agreement, the following: (1) a surety bond in an amount equal to one hundred percent (100%) of the contract price as security for the faithful performance of this Agreement, and (2) a separate surety bond in an amount equal to at least one hundred percent (100%) of the contract price as security for the payment of all persons furnishing labor or materials in connection with the Work under this Agreement. Sureties for each of the bonds and the forms thereof shall be satisfactory to CITY. In addition, such sureties must be authorized to issue bonds in California; sureties must be listed on the latest revision to the U.S.

Department of the Treasury Circular 570; and must be shown to have sufficient bonding capacity to provide the bonds required by the Contract Documents.

CONTRACTOR shall provide a certified copy of the certificate of authority of the surety issued by the Insurance Commissioner; a certificate from the clerk of the county in which the court or officer is located that the certificate of authority of the surety has not been surrendered, revoked, canceled, annulled, or suspended or, in the event that it has, that renewed authority has been granted; and copies of the surety’s most recent annual statement and quarterly statement filed with the Department of Insurance pursuant to Article 10 (commencing with Section 900) of Chapter 1 of Part 2 of Division 1 of the Insurance Code.

CONTRACTOR guarantees that all materials used in the Work and all labor performed shall be in conformity with the Contract Documents including, but not limited to, the standards and specifications set forth in the most current edition of The Greenbook.

CONTRACTOR shall, at its own expense, make any and all repairs and replacements that shall become necessary as the result of any failure of the Work to conform to the aforementioned Contract Documents, and/or standard specifications; provided, however, that CONTRACTOR shall be obligated under this provision only to the extent of those failures or defects of which CONTRACTOR is given notice within a period of twelve (12) months from the date that the Notice of Completion is recorded.

The rights and remedies available to CITY pursuant to this provision shall be cumulative with all rights and remedies available to CITY pursuant to statutory and ATTACHMENT 2
170
Project and Specification No. 25-02
8 common law, which rights and remedies are hereby expressly reserved, and neither the foregoing guarantee by CONTRACTOR nor its furnishing of the bonds, nor acceptance thereof by CITY, shall constitute a waiver of any rights or remedies available to CITY against CONTRACTOR.

20. I
NDEMNIFICATION.

CONTRACTOR agrees to protect, defend, indemnify and hold harmless CITY and its elected and appointed boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys’ fees, for injury to or death of any person, and for injury or damage to any property, including consequential damages of any nature resulting therefrom, arising out of or in any way connected with the performance of this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the CONTRACTOR, 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 CONTRACTOR, 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 CONTRACTOR, its employees, and/or authorized subcontractors under this Agreement, whether or not the CONTRACTOR, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be l iable.

Notwithstanding the foregoing, the CONTRACTOR 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 CONTRACTOR’s proposal, which shall be of no force and effect.

CONTRACTOR shall comply with all of the provisions of the Workers’ Compensation insurance laws and Safety in Employment laws of the State of California, including the applicable provisions of Divisions 4 and 5 of the California Labor Code and all amendments thereto and regulations promulgated pursuant thereto, and all similar State, Federal or local laws applicable; and CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, liabilities, expenses, damages, suits, actions, proceedings and judgments, of every nature and description, including attorney fees, that may be presented, brought or recovered against CITY for or on account of any liability under or failure to comply with any of said laws which may be incurred by reason of any Work performed under this Agreement by CONTRACTOR or any subcontractor or others performing on behalf of CONTRACTOR.

CITY does not, and shall not, waive any rights against CONTRACTOR which it may have by reason of the above hold harmless agreements, because of the acceptance by CITY or the deposit with CITY by CONTRACTOR of any or all of the insurance policies described in Paragraph 21 (Insurance) of this Agreement.

The hold harmless agreements by CONTRACTOR shall apply to all liabilities, ATTACHMENT 2
171
Project and Specification No. 25-02
9 expenses, claims, and damages of every kind (including but not limited to attorneys’ fees) incurred or alleged to have been incurred, by reason of the operations of CONTRACTOR or any subcontractor or others performing on behalf of CONTRACTOR, whether or no t such insurance policies are applicable. CONTRACTOR shall require any and all tiers of subcontractors to afford the same degree of indemnification to the CITY OF COSTA MESA and its elected and appointed boards, officers, agents, and employees that is required of CONTRACTOR and shall incorporate identical indemnity provisions in all contracts between CONTRACTOR and all tiers of its subcontractors.

In the event that CONTRACTOR and CITY are sued by a third party for damages caused or allegedly caused by negligent or other wrongful conduct of CONTRACTOR, or by a dangerous condition of CITY’s property created by CONTRACTOR or existing while the property was under the control of CONTRACTOR, CONTRACTOR shall not be relieved of its indemnity obligation to CITY by any settlement with any such third party unless that settlement includes a full release and dismissal of all claims by the third party against the CITY.

21. I
NSURANCE.

(a) M inimum Scope and Limits of Insurance. CONTRACTOR shall not commence work under this Agreement until it has obtained all insurance required under this Paragraph 21 and CITY has approved the insurance as to form, amount, and carrier, nor shall CONTRACTOR allow any subcontractor to commence any Work until all similar insurance required of the subcontractor has been obtained and approved.

C
ONTRACTOR 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:

(i) 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 Millio n Dollars ($1,000,000.00) 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.

(ii) 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.

(iii) Workers’ compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability insurance with a limit of no less than One Million Dollars ($1,000,000.00) per accident for bodily injury ATTACHMENT 2
172
Project and Specification No. 25-02
10 or disease. CONTRACTOR 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 CONTRACTOR for the CITY and to require each of its subcontractors, if any, to do likewise under their workers’ compensation insurance policies.

(iv) Umbrella or excess liability insurance that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:

(1) A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason;
(2) Pay on behalf of wording as opposed to reimbursement; (3) Concurrency of effective dates with primary policies; (4) Policies shall “follow form” to underlying primary policies; and (5) Insureds under primary policies shall also be insureds under the umbrella or excess policies.

(b) E
ndorsements . The commercial general liability insurance policy and business automobile liability policy shall contain or be endorsed to contain the following provisions:

(
i) 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 CONTRACTOR pursuant to its contract with the City; products and completed operations of the CONTRACTOR; premises owned, occupied or used by the CONTRACTOR; automobiles owned, leased, hired, or borrowed by the CONTRACTOR.”

(ii) Notice: “Said policy shall not terminate, nor shall it be canceled nor the coverage reduced, until thirty (30) days after written notice is given to CITY.”

(iii) Other Insurance: “CONTRACTOR’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) R
eporting Provisions . Any failure of CONTRACTOR 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.

ATTACHMENT 2
173
Project and Specification No. 25-02
11 (d) I nsurance Applies Separately. CONTRACTOR’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.

(e) D
eductible 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.

(f) P
roof of Insurance. Prior to commencement of the Work, CONTRACTOR shall furnish CITY, through the Project Manager, proof of compliance with the above insurance requirements in a form satisfactory to City’s Risk Management.

(g) No
n -Limiting. Nothing in this Paragraph 21 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.

22. PRE
VAILING WAGE REQUIREMENTS.

(a) P
revailing Wage Laws. CONTRACTOR is aware of the requirements of Chapter 1 (beginning at Section 1720 et seq.) of Part 7 of Division 2 of the California Labor Code, as well as Title 8, Section 16000 et seq. of the California Code of Regulations (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. This Project is a “public works” project and requires compliance with the Prevailing Wage Laws. CONTRACTOR shall defend, indemnify and hold the CITY, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

(b) P
ayment of Prevailing Wages. CONTRACTOR shall pay the prevailing wage rates for all work performed under this Agreement. When any craft or classification is omitted from the general prevailing wage determinations, CONTRACTOR shall pay the wage rate of the craft or classification most closely related to the omitted classification. A copy of the general prevailing wage rate determination is on file in the Office of the City Clerk and is incorporated into this Agreement as if fully set forth herein. CONTRACTOR shall post a copy of such wage rates at all times at the project site(s).

(c) Legal
Working Day . In accordance with the provisions of Labor Code Section 1810 et seq., eight (8) hours is the legal working day. CONTRACTOR and any subcontractor(s) of CONTRACTOR shall comply with the provisions of the Labor Code regarding eight (8) -hour work day and 40- hour work week requirements, and overtime, Saturday, Sunday, and holiday work. Work performed by CONTRACTOR’s or any subcontractor’s employees in excess of eight (8) hours per day, and 40 hours during any ATTACHMENT 2
174
Project and Specification No. 25-02
12 one week, must include compensation for all hours worked in excess of eight (8) hours per day, or 40 hours during any one week, at not less than one and one- half times the basic rate of pay. CONTRACTOR shall forfeit as a penalty to CITY Twenty -Five Dollars ($25.00), or any greater penalty set forth in the Labor Code, for each worker employed in the execution of the Work by CONTRACTOR or by any subcontractor(s) of CONTRACTOR, for each calendar day during which such worker is required or permitted to the work more than eight (8) hours in one calendar day or more than 40 hours in any one calendar week in violation of the Labor Code.

(d) A
pprentices . CONTRACTOR shall comply with the provisions of Labor Code Section 1777.5 concerning the employment of apprentices on public works projects.

CONTRACTOR shall be responsible for ensuring compliance by its subcontractors with Labor Code Section 1777.5.

(e) P
ayroll Records. Pursuant to Labor Code Section 1776, CONTRACTOR and any subcontractor(s) shall keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by CONTRACTOR or any subcontractor in connection with this Agreement. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct; and (2) The employer has complied with the requirements of Sections 1771, 1881, and 1815 of the Labor Code for any work performed by his or her employees on this Project. The payroll records shall be certified and shall be available for inspection at all reasonable hours in accordance with the requirements of Labor Code Section 1776. CONTRACTOR shall also furnish each week to CITY’s Project Administration Division a statement with respect to the wages of each of its employees during the preceding weekly payroll period.

(f) Re
gistration with DIR. CONTRACTOR and any subcontractor(s) of CONTRACTOR shall comply with the provisions of Labor Code Section 1771 and Labor Code Section 1725.5 requiring registration with the DIR.

23. CO
MPLIANCE WITH ALL LAWS.

CONTRACTOR shall, at its own cost and expense, comply with all applicable local, state, and federal laws, regulations, and requirements in the performance of this Agreement, including but not limited to laws regarding health and safety, labor and employment, and wage and hours.

24. DRUG-F
REE WORKPLACE POLICY.

CONTRACTOR, upon notification of the award of this Agreement, shall establish a Drug-Free Awareness Program to inform employees of the dangers of drug abuse in the workplace, the penalties that may be imposed upon employees for drug abuse violations occurring in the workplace, and the employee assistance programs available ATTACHMENT 2
175
Project and Specification No. 25-02
13 to employees. Each employee engaged in the performance of a CITY contract must be notified of this Drug- Free Awareness Program, and must abide by its terms.

CONTRACTOR shall conform to all the requirements of CITY’s Policy No. 100- 5, attached hereto. Failure to establish a program, notify employees, or inform the CITY of a drug-related workplace conviction will constitute a material breach of contract and cause for immediate termination of the contract by the CITY.

25. NO
N– DISCRIMINATION.

In performing this Agreement, CONTRACTOR will not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status or sex, or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Section 1735 of the California Labor Code.

26. PRO
VISIONS CUMULATIVE.

The provisions of this Agreement are cumulative and in addition to, and not in limitation of, any other rights or remedies available to CITY.

27. NO
TICES.

It shall be the duty and responsibility of CONTRACTOR to notify all tiers of subcontractors and material men of the following special notice provision; namely, all preliminary 20-day notices or stop notices shall be directed only to the City Clerk and to no other department, and shall be either personally delivered or sent by certified mail, postage prepaid.

All other notices shall be in writing and delivered in person or sent by certified mail, postage prepaid. Notices required to be given to CITY pursuant to this Agreement shall be addressed as follows:

City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Attn: Elena Polyakova, Assistant Engineer

Notices required to be given to CONTRACTOR shall be addressed as follows:

Zusser Company, Inc.
528 Palisades Drive, Suite 504
Los Angeles, CA 90272
Attn: Lanisa Sass, President

Notices required to be given to CONTRACTOR’s sureties shall be addressed as follows:

ATTACHMENT 2
176
Project and Specification No. 25-02
14 _________________
_________________
_________________
Attn: ___________

28. I
NDEPENDENT CONTRACTOR.

The parties hereto acknowledge and agree that the relationship between CITY and CONTRACTOR is one of principal and independent contractor and no other. All personnel to be utilized by CONTRACTOR in the performance of this Agreement shall be employees of CONTRACTOR and not employees of the CITY. CONTRACTOR shall pay all salaries and wages, employer’s social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes.

Nothing contained in this Agreement shall create or be construed as creating a partnership, joint venture, employment relations, or any other relationship except as set forth between the parties. The parties specifically acknowledge and agree that CONTRACTOR is not a partner with CITY, whether general or limited, and no activities of CITY or CONTRACTOR or statements made by CITY or CONTRACTOR shall be interpreted by any of the parties hereto as establishing any type of business relationship other than an independent contractor relationship.

29. P ERS ELIGIBILITY INDEMNIFICATION.

In the event that CONTRACTOR or any employee, agent, or subcontractor of CONTRACTOR 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 elig ible for enrollment in PERS as an employee of the CITY, CONTRACTOR shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for PERS benefits on behalf of CONTRACTOR 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, CONTRACTOR 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.

30. VAL
IDITY.

The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any of the other provisions of this Agreement.

31. G
OVERNING LAW .

ATTACHMENT 2
177
Project and Specification No. 25-02
15 This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any legal action relating to or arising out of this Agreement shall be subject to the jurisdiction of the County of Orange, California.

32. NO
THIRD PARTY BENEFICIARY RIGHTS.

This Agreement is entered into for the sole benefit of the CITY and CONTRACTOR 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.

33. ASSI
GNABILITY.

This Agreement may not be transferred or assigned by either party, or by operation of law, to any other person or persons or business entity, without the other party’s written permission. Any such transfer or assignment, or attempted transfer or assignment , without written permission, may be deemed by the other party to constitute a voluntary termination of this Agreement and this Agreement shall thereafter be deemed terminated and void.

34. W
AIVER.

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 referring expressly to this Paragraph. 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.

35. HEA
DINGS.

Section and subsection headings are not to be considered part of this Agreement, are included solely for convenience, and are not intended to modify or explain or to be a full or accurate description of the content thereof.

36. CO
NSTRUCTION.

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.

ATTACHMENT 2
178
Project and Specification No. 25-02
16 37. COUNTERPARTS.

This Agreement may be executed in one or more counterparts by the parties hereto. All counterparts shall be construed together and shall constitute one Agreement.

38. CO RPORATE 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.

[Signature page follows.]
ATTACHMENT 2
179
Project and Specification No. 25-02
17 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: _____________________ Lori Ann Farrell Harrison
City Manager

CONTRACTOR

__________________________________ Date: _____________________ Signature

__________________________________
Name and Title

ATTEST:

__________________________________ Date: _____________________ Brenda Green
City Clerk

APPROVED AS TO FORM:

__________________________________ Date: _____________________ Kimberly Hall Barlow
City Attorney

APPROVED AS TO INSURANCE:

__________________________________ Date: _____________________ Ruth Wang
Risk Management

ATTACHMENT 2
180
Project and Specification No. 25-02
18 APPROVED AS TO PURCHASING:

__________________________________ Date: _____________________ Carol Molina
Finance Director

DEPARTMENTAL APPROVAL:

__________________________________ Date: _____________________ Raja Sethuraman
Public Works Director

__________________________________ Date: _____________________ Elena Polyakova
Project Manager

ATTACHMENT 2
181

Costa Mesa City CouncilFebruary 4, 2025

Costa Mesa City Council
February 4, 2025