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CITY OF LAGUNA BEACH
PROFESSIONAL SERVICES AGREEMENT WITH RINCON CONSULTANTS, INC
1. PARTIES AND DATE.
This Agreement #__________ is made and entered into this _____ day of ________, 20___, by and between the City of Laguna Beach, a municipal corporation organized under the laws of the State of California with its principal place of business at 505 Forest Avenue, Laguna Beach, California 92651 ("City") and Rincon Consultants, Inc, a corporation in the state of California, with its principal place of business at 250 East 1st Street, Suite 1400, Los Angeles, California, 90012 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing environmental impact report preparation and technical peer review services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the environmental impact report preparation and technical peer review for the Aliso Estuary Restoration project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional environmental impact report preparation and technical peer review for the Aliso Estuary Restoration project services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. -2- PROFESSIONAL SERVICES AGREEMENT
3.1.2 Term. The term of this Agreement shall be from date of contract execution to December 2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than one additional one-year term. Project timelines are detailed in Exhibit B. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed one hundred seventeen thousand, eight hundred eighty-two ($117,882) without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultants officers, employees or agents, except as set forth in this -3- PROFESSIONAL SERVICES AGREEMENT
Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Emily Marino, Project Manager
3.3.5 City's Representative. The City hereby designates Jeremy Frimond, Assistant City Manager, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Emily Marino, Project Manager, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
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3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of -5- PROFESSIONAL SERVICES AGREEMENT
the Party responsible for the delay, shall not entitle Consultant to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.10.3 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may -6- PROFESSIONAL SERVICES AGREEMENT
seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.
3.3.10.7 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.10.8 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $2,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $2,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on -7- PROFESSIONAL SERVICES AGREEMENT
a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
3.3.10.9 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability: (1) Additional Insured: The City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor is responsible. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.10.10 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.10.11 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
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3.3.10.12 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.10.13 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.3.10.14 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.10.15 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.10.16 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. The insurance obligations under this Agreement shall be: (1) all the insurance coverage and/or limits carried by or available to the Consultant; or (2) the minimum insurance coverage requirements and/or limits shown in this Agreement; whichever is greater. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits, which are applicable to a given loss, shall be available to the City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of the Consultant under this Agreement.
3.3.10.17 Additional Insurance Provisions
(A) If any Excess or Umbrella Liability policies are used to meet the limits of liability required by this Agreement, then said policies shall be “following form” of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this Agreement, including, but not limited to, the additional insured and -9- PROFESSIONAL SERVICES AGREEMENT
primary & non-contributory insurance requirements stated herein. No insurance policies maintained by the City, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Consultant’s primary and excess liability policies are exhausted.
(B) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(C) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(D) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (E) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(F) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(G) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.10.18 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to -10- PROFESSIONAL SERVICES AGREEMENT
the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants.
3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
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3.5 Termination of Agreement.
3.5.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any negligent acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent -12- PROFESSIONAL SERVICES AGREEMENT
jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants. Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Rincon Consultants
250 East 1st Street, Suite 1400
Los Angeles, California 90012
ATTN: Emily Marino, Project Manager
City: City of Laguna Beach
505 Forest Avenue
Laguna Beach CA 92651
ATTN: Jeremy Frimond, Assistant City Manager
-13- PROFESSIONAL SERVICES AGREEMENT
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible -14- PROFESSIONAL SERVICES AGREEMENT
or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, -15- PROFESSIONAL SERVICES AGREEMENT
the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.
Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, -16- PROFESSIONAL SERVICES AGREEMENT
privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
SIGNATURES ON NEXT PAGE
-17- PROFESSIONAL SERVICES AGREEMENT
SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF LAGUNA BEACH AND
RINCON CONSULTANTS, INC
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF LAGUNA BEACH Rincon Consultants, Inc.
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
City Manager
Approved as to Form:
_____________________________________
City Attorney
Attested By:
City Clerk
Secretary
Richard Daulton
President
Jennifer Haddow
55852.00003\42823523.1
Exhibit “A”-1 PROFESSIONAL SERVICES AGREEMENT
EXHIBIT "A"
SCOPE OF SERVICES
12 2 Approach and Methodology
Rincon will deliver EIR and technical study peer reviews that are concise, transparent, and defensible. Our approach is grounded in proactive communication and rigorous technical analysis and is described below.
Task 1 Project Initiation
Within one week of authorization to proceed, Rincon staff will organize a virtual or hybrid kickoff meeting with the City (and applicant consortium if requested) to review and finalize project goals and strategies, refine project scope and working objectives, confirm assumptions, clarify any outstanding scope issues, confirm the City’s preferred format and work flow for the peer review comments, determine the availability of data and electronic resources used to prepare the EIR, make any revisions to the scope of work (if necessary), and prepare a detailed project schedule and work program.
Deliverables
Kickoff meeting attendance by up to six Rincon team members Draft project schedule in Microsoft Project or Excel format Data Request
Assumptions
Kickoff meeting will be virtual (or hybrid if requested). All relevant project data will be provided to Rincon in a timely and efficient manner. City will respond to data requests in a timely and efficient manner.
Task 2 Peer Review of Technical Reports
Rincon will provide a peer review of the technical studies prepared by the applicant. The focus of the peer reviews will be on the sufficiency of the technical studies for Planning Commission Design Review purposes and to confirm that the reports meet the technical standards of the profession, are objective, and are sufficient to inform the disclosure, analysis, and (if appropriate) mitigation of environmental impacts related to their subject in the EIR. Review of the technical studies will focus on methodology and assumptions, adherence to regulatory standards as appropriate, consistency with the City’s General Plan and other regulatory documents, specificity and appropriateness of recommended mitigation, and completeness and accuracy. The review will be conducted with an eye for legal defensibility, exposure of the City to liability due to any errors and/or omissions, for soundness and sufficiency in supporting analysis in the EIR. Technical reports that will be peer reviewed by the Rincon team include the following:
Geotechnical Evaluation
Drainage Plan and Preliminary Water Quality Management Plan Flood Modeling Study
Trip Generation Assessment
Tree Survey Report
Wetland Delineation and Impact Analysis
Coastal Processes and SLR Assessment
Utilities Modification and Relocation Plan
Biological Resources Assessment (including vegetation community mapping, rare plant survey and habitat suitability analysis for threatened and endangered species) Hydrodynamic Modeling
Approach and Methodology
Rincon Consultants 13
Water and Sediment Quality Study
CalEEMod Modeling1
Cultural and Tribal Resources Assessment
Phase I Environmental Site Assessment (Hazardous Materials) Comments on the technical study reports/appendices will be provided directly in the Word version of the technical studies. In addition, Rincon will provide a Comments Matrix for each technical study to document key comments with columns added for the study preparer’s responses and for subsequent rounds of review, if needed.
Deliverables
Word documents of each of the technical study reports listed above with comment bubbles Comments Matrix for each of the technical study reports listed above Assumptions
Word and PDF files of each technical studies will be provided to Rincon. Rincon assumes that the technical reports will be complete, factual, and of high quality, and that all appendices for the technical studies will be provided concurrently with the reports. The scope of work assumes that report preparers have conducted a thorough QA/QC review of the documents, that all data sources are valid, and that all information cited is accurate. The peer reviews will not include validation or verification of all data sources and information cited or used to develop the reports.
The only focused survey report appended to the Biological Resources Assessment that will require peer review is the rare plant survey report.
No fieldwork or additional research will be required to prepare the peer review comments. Any additional cultural resources analysis, including updating records searches, outreach to Native American Heritage Commission, and/or fieldwork will be completed by the applicant’s consultant. The Coastal Processes and SLR Assessment Technical Report will be reviewed for consistency with the best available science, currently the California Coastal Commission Sea Level Rise Policy Guidance adopted in November 2024 and the State of California Sea Level Rise Guidance: 2024 Science and Policy Update adopted in June 2024.
The CalEEMod Modeling will be reviewed concurrently with the Administrative Draft Air Quality and GHG Emissions EIR sections, unless a full Air Quality/GHG Emissions Technical Study is available for review. The City will be responsible for conveying Rincon’s peer review comments to the technical study preparer for each round of peer review.
Revisions to the technical studies based on Rincon’s peer review comments will be prepared by the consultant that authored the technical study.
This scope assumes no more than one round of in-depth review and one round of backcheck review for sufficiency of responses and revisions will be required for the technical study reports. If additional rounds of peer review on the technical reports are required due to unaddressed deficiencies, Rincon will immediately alert the City, and additional rounds of peer review can be completed on a time-and-materials basis. No hard copies will be provided.
1 The CalEEMod Modeling will be reviewed concurrently with the Administrative Draft Air Quality and GHG Emissions EIR sections, unless a full Air Quality/GHG Emissions Technical Study is available for review. 14 Task 3 Peer Review of EIR
Task 3.1 Scoping Report and Administrative Draft EIR
Review of the Scoping Report and Administrative Draft EIR will focus on methodology and assumptions, adherence to regulatory standards as appropriate, consistency with the City’s General Plan, and consideration of the previous work on the Aliso Creek Specific Plan and Aliso Creek Planning Unit Local Coastal Program, as well as other regulatory documents, specificity and appropriateness of recommended mitigation, and completeness and accuracy of technical study reports. The review will be conducted with an eye for legal defensibility, exposure of the City to liability due to any errors and/or omissions, and for soundness and sufficiency in supporting analysis in the EIR. Rincon assumes that review of the Administrative Draft EIR will entail a single round of review and comments, with consideration of the following:
Conclusions and recommendations should be well supported by facts, observation, analysis or explanation, and the Administrative Draft EIR and technical study reports should be internally consistent. Technical accuracy of the information provided.
Rincon anticipates the Administrative Draft EIR will include the following sections:
Project Description
Aesthetics
Air Quality
Biological Resources
Cultural Resources
Geology and Soils
GHG Emissions
Hazards and Hazardous
Materials
Hydrology and Water Quality
Land Use and Planning
Noise
Recreation
Transportation
Tribal Cultural Resources
Utilities and Service Systems
Alternatives, up to three
alternatives assumed to be
provided, including the required
“No Project” Alternative
Other CEQA sections (e.g., Effects
Found Not to be Significant,
Significant Irreversible Changes,
Growth-Inducing Impacts)
Rincon recommends that the entire Administrative Draft EIR be submitted in one comprehensive batch as part of a combined first round of peer review. There are numerous CEQA thresholds and analyses that overlap and need to be reviewed for consistency. As such, receiving all sections of the Administrative Draft EIR, as opposed to reviewing documents in multiple separate submittals, results in greater efficiency with the budget and schedule. However, if preferred by the City, Rincon can review Administrative Draft EIR sections as they become available. Similar to the technical studies, comments on the Administrative Draft EIR and Scoping Report will be provided directly in the Word documents for each EIR section. In addition, Rincon will provide a Comments Matrix for the Administrative Draft EIR to document key comments with columns added for the EIR preparer’s responses and for subsequent rounds of review.
Deliverables
Word documents of each of the Administrative Draft EIR sections listed above with comments and suggested text revisions
Draft EIR Comments Matrix
Assumptions
The Administrative Draft EIR sections will be provided to Rincon in Microsoft Word format. All supporting technical studies, project plans, renderings, calculations, and modeling outputs that inform the Administrative Draft EIR will be provided prior to receipt of or concurrently with the Administrative Draft EIR sections.
No hard copies will be provided.
Approach and Methodology
Rincon Consultants 15
Task 3.2 Screencheck Draft EIR
Following receipt of the Screencheck Draft EIR (as an electronic Word version showing revisions in track changes), Rincon will review the EIR sections for accuracy, consistency and adherence to comments provided.
Peer review of the Screencheck Draft EIR will be completed in the same manner as the Administrative Draft EIR.
Review of the responses to comments will focus on the appropriateness of responses, new information that may be provided, and consistency. In addition, Rincon will provide an updated Comments Matrix for the Screencheck Draft EIR to document resolved comments and any new or follow-up comments.
If during Rincon’s review of the Screencheck Draft EIR it is determined that technical inadequacies identified during our review of the initial review of the Administrative Draft EIR have not been resolved, Rincon will provide additional comments in the Word documents.
Deliverables
Word documents of each of Screencheck Draft EIR section with comments and suggested text revisions Updated Draft EIR Comments Matrix
Assumptions
The Screencheck Draft EIR sections will be provided to Rincon in Microsoft Word format with track changes showing revisions.
The EIR preparer will provide responses to Rincon’s comments in the Comments Matrix explaining the changes made in response to the comments.
No hard copies will be provided.
Task 3.3 Public Review Draft EIR and Noticing Forms
After the EIR preparer has addressed all comments resulting from Rincon’s peer review of the Screencheck Draft EIR, Rincon will provide one final backcheck of the Public Review Draft EIR to confirm that all comments have been adequately resolved. Rincon will also provide a peer review of the Notice of Availability (NOA), Notice of Completion (NOC), and Environmental Summary forms and provide comments directly on the forms if any changes are recommended. The Draft EIR will then be released for public review.
Deliverables
Word documents of each of Public Review Draft EIR section with comments and suggested text revisions Final Draft EIR Comments Matrix
NOA, NOC, and Environmental Summary Form with any comments made directly in those documents Assumptions
The Public Review Draft EIR sections will be provided to Rincon in Microsoft Word format with track changes showing revisions.
The EIR preparer will provide responses to Rincon’s comments in the Comments Matrix explaining the changes made in response to the comments.
The NOA, NOC, and Environmental Summary forms will be provided in Microsoft Word or PDF format. Rincon assumes that the EIR preparer will have adequately revised the Draft EIR in response to the comments received, and any remaining comments will be limited to minor clarifications. No hard copies will be provided.
16 Task 3.4 Administrative Draft Responses to Comments, Final EIR, and MMRP
Following the public review period, the EIR preparer will address any public comments that are received during the review period in an Administrative Draft Responses to Comments document. In addition, the EIR preparer will prepare an Administrative Draft Final EIR that provides text revisions to the Draft EIR, as necessary, based on the public comments received and a Draft Mitigation Monitoring and Reporting Program (MMRP). Rincon’s peer review will focus on the appropriateness and accuracy of the draft responses to public comments and resulting revisions to the Draft EIR, if applicable. The peer review of the Responses to Comments will be focused on comments that raise substantive technical issues. Rincon’s peer review of the MMRP will focus on ensuring that the MMRP provides clear and actionable direction for the implementation and monitoring of the mitigation measures included in the EIR.
Review of the Administrative Draft Responses to Comments, Final EIR, and MMRP will be completed using electronic Word versions provided by the City, using track-change format that will highlight recommended text revisions, corrections, and deletions, as well as comments provided directly in the documents. In addition, Rincon will provide a Comments Matrix for the Administrative Draft Responses to Comments, Final EIR, and MMRP to document key comments with columns added for the EIR preparer’s responses and for subsequent rounds of review. We have budgeted a set number of hours for this task. While we believe this is a reasonable estimate of the hours required, the number and complexity of Draft EIR comments cannot be predicted with certainty.
Therefore, in the event that the number or complexity of comments received would require additional hours, we reserve the right to renegotiate the budget for this component of the work program.
Deliverables
Comments and revisions to the Administrative Draft Responses to Comments, Administrative Final EIR, and MMRP in track changes Word document format
Administrative Draft Responses to Comments, Final EIR, and MMRP Comments Matrix Assumptions
A copy of the public comments received will be provided along with the Administrative Draft Responses to Comments.
The MMRP will take the form of a table with columns for the mitigation measures, required documentation, timing, monitoring, and responsible party(ies).
The peer review of the draft versions of the Final EIR documentation, including Responses to Comments and the MMRP, will entail a single round of comments
Approximately 26 professional staff hours have been assumed for this task. In the event the number or complexity of comments received require additional hours, a scope amendment may be prepared. No hard copies will be provided.
Task 3.5 Final Responses to Comments, Final EIR, MMRP, and Notice of Determination
After the EIR preparer has addressed all comments resulting from Rincon’s peer review of the Administrative Draft Responses to Comments, Final EIR, and MMRP, Rincon will provide a final backcheck to confirm that all comments have been adequately resolved. Rincon will also provide a peer review of the Notice of Determination (NOD) and provide comments directly on the form if any changes are recommended.
Deliverables
Comments and revisions to the Final Responses to Comments, Final EIR, and MMRP in track changes Word document format
NOD with any comments made directly in the document
Final Responses to Comments, Final EIR, and MMRP Comments Matrix Approach and Methodology
Rincon Consultants 17
Assumptions
The Final Responses to Comments, Final EIR, and MMRP will be provided to Rincon in Microsoft Word format with track changes showing revisions and responses to Rincon’s comments. The NOD will be provided in Microsoft Word or PDF format. The EIR preparer will provide responses to Rincon’s comments in the Comments Matrix explaining the changes made in response to the comments.
The EIR preparer will have adequately responded and revised the Final EIR materials (including the Responses to Comments and MMRP), and any remaining comments will be limited to minor clarifications. No hard copies will be provided.
Task 4 Public Meeting Attendance
Two team members (as needed/requested by the City) will attend up to two public scoping meetings (one for the general public and one for the public and government agencies), two Planning Commission meetings (including one meeting to receive public comments on the Public Draft EIR), and up to two City Council meetings.
Deliverables
Attendance at up to a total of six in-person meetings by up to two members of the Rincon team Assumptions
A maximum travel distance of 80 miles (round trip) per staff member is assumed for each meeting. Each public scoping meeting will not exceed two hours in length. Each Planning Commission and City Council meeting will not exceed four hours in length.
Task 5 Project Management and Internal Meetings
Rincon’s Project Manager will be responsible for general day-to-day project management tasks, including team management, coordination and communication with the City and applicant team, and monthly invoices with progress reports. As part of this assignment, Rincon staff will coordinate via email with the City weekly or as needed to meet the project schedule, provide updates on review progress, identify any issues and review and refine project deliverables. This scope includes attendance at up to 10 check-in meetings by up to two Rincon staff to discuss peer review comments and project status.
Deliverables
Attendance at up to a total of two in-person meetings and up to eight virtual meetings (total of up to 10 meetings) by up to two members of the Rincon team
Rigorous QA/QC of all products
Regular schedule and milestone updates
Monthly invoices with progress reports
Assumptions
A maximum travel distance of 80 miles per staff member is assumed for each in-person meeting. Check-in meetings will not exceed one-hour in length.
Project Schedule
The Rincon team is prepared to begin the work program described in this proposal immediately upon authorization to proceed and is prepared to meet the schedule outlined by the City in the request for proposals.
This includes the following timeframes for project deliverables:
City of Laguna Beach
Proposal for the Aliso Estuary Restoration Project – Environmental Impact Report (EIR) Preparation and Technical Peer Review Services
18 Peer reviews of technical studies completed within three weeks of receipt Peer reviews of revised technical studies within one week of receipt Peer review of the Administrative Draft EIR sections within three weeks of receipt Peer review of the Screencheck Draft EIR within two weeks of receipt Peer review of the Public Draft EIR within one week of receipt Peer review of the Administrative Final EIR, Responses to Comments, and MMRP within two weeks of receipt Peer review of the Final EIR, Responses to Comments, and MMRP within one week of receipt If additional time is needed for any of the rounds of peer review based on document length or complexity of peer review comments, Rincon will notify the City immediately.
Conflicts of Interest
Rincon Consultants 37
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Exhibit “B”-1 PROFESSIONAL SERVICES AGREEMENT
EXHIBIT "B"
SCHEDULE OF SERVICES
Aliso Estuary Restoration Project – Environmental Impact Report (EIR) Preparation and Technical Peer Review Services
18 Peer reviews of technical studies completed within three weeks of receipt Peer reviews of revised technical studies within one week of receipt Peer review of the Administrative Draft EIR sections within three weeks of receipt Peer review of the Screencheck Draft EIR within two weeks of receipt Peer review of the Public Draft EIR within one week of receipt Peer review of the Administrative Final EIR, Responses to Comments, and MMRP within two weeks of receipt Peer review of the Final EIR, Responses to Comments, and MMRP within one week of receipt If additional time is needed for any of the rounds of peer review based on document length or complexity of peer review comments, Rincon will notify the City immediately.
Exhibit “C”-1 PROFESSIONAL SERVICES AGREEMENT
EXHIBIT "C"
COMPENSATION
1 Rate Hours
Labor
Budget
Direct
Expenses
Total
Budget
Task 1 Project Initiation 6.00 $1,307 $0 $1,307
Principal $280 2.00 $560
Senior Supervisor Planner II $245 0.00 $0
Senior Planner II $212 3.00 $636
Project Assistant $111 1.00 $111
Task 2 Technical Study Peer Reviews 105.50 $23,088 $22,500 $45,588 Principal $280 11.50 $3,220
Senior Principal $280 4.00 $1,120
Senior Supervisor Biologist II $245 21.00 $5,145
Senior Supervising Environmental Scientist II $245 7.00 $1,715 Senior Supervisor Planner II $245 8.00 $1,960
Senior Planner II $212 14.00 $2,968
Senior Biologist I $197 18.00 $3,546
Biologist III $161 8.00 $1,288
Environmental Scientist III $161 6.00 $966
Planner II $145 8.00 $1,160
Engineering $21,000
Transportation Planning or Engineering $1,500
Task 3 EIR Peer Review 232.00 $52,360 $800 $53,160
Principal $280 49.00 $13,720
Senior Principal $280 3.00 $840
Senior Supervisor Biologist II $245 8.00 $1,960
Supervisor Planner I $228 43.00 $9,804
Senior Environmental Scientist II $212 4.00 $848
Senior Planner II $212 103.00 $21,836
Senior Biologist I $197 2.00 $394
Planner IV $174 2.00 $348
Planner II $145 18.00 $2,610
Transportation Planning or Engineering $800
Task 4 Public Meeting Attendance 32.00 $8,824 $381 $9,205 Principal $280 30.00 $8,400
Senior Planner II $212 2.00 $424
Parking Fees $69
Travel - Mileage $312
Task 5 Project Management and Internal Meetings 41.00 $8,495 $127 $8,622 Principal $280 10.00 $2,800
Supervisor Planner I $228 2.00 $456
Senior Planner II $212 20.00 $4,240
Project Assistant $111 9.00 $999
Parking Fees $23
Travel - Mileage $104
Project Total 416.50 $94,074 $23,808 $117,882
2 Direct Expenses Summary Amount
Parking Fees $92
Travel - Mileage $416
Engineering $21,000
Transportation Planning or Engineering $2,300
Direct Expenses Subtotal $23,808