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Rincon Consultants Inc 2013 EIR Marymount AGREEMENT FOR ENVIRONMENTAL CONSULTING SERVICES THIS AGREEMENT is executed this 7th day of May, 2013, by and between the City of Rancho Palos Verdes (hereinafter called "CITY"), and Rincon Consultants, Inc. (hereinafter called ("CONSULTANT"). RECITALS WHEREAS, on June 12, 2003, an application for Zoning Case No. 2003-00317 (CUP No. 9 - Revision "E," a Grading Permit and a Variance Permit) was filed by Marymount College, now known as Marymount California University (Marymount) to amend the original conditional use permit (CUP) to allow certain campus improvements, all of which were referred to as the Marymount College Facilities Expansion Project (Expansion Project); and, WHEREAS, on July 2009, the Planning Commission approved, with conditions, the Expansion Project. As part of this approval, the Planning Commission required the College to install 20-foot tall retractable netting around certain portions of the proposed Athletic Field in order to minimize the possibility of errant balls entering Palos Verdes Drive East (PVDE) and also prohibited recreational activities on the Athletic Field that involved baseballs, golf balls, or other similar sized balls that could not be adequately contained by the retractable netting. The Planning Commission's decision was appealed to the City Council; and, WHEREAS, during the appeal proceedings, the City Council directed City Staff to study alternatives for the Athletic Field to address safety concerns regarding errant balls entering the roadway due to the close proximity of the Athletic Field to PVDE. As result of this study, various alternatives were studied, in what is referred to as Appendix D to the Final EIR, including maintaining the Athletic Field in its current location at the MARYMOUNT ENV. SERVICE AGREEMENT-RINCON CONSULTANTS, INC. MAY 7, 2013 PAGE 2 eastern portion of the campus but enlarging the field size to as near a regulation size field as possible for soccer (Athletic Field Alternative D-1). Another alternative (Athletic Field Alternative D-2), proposed by Marymount, placed two tennis courts on the western side and two tennis courts on the eastern side of the Athletic Field that was proposed to be located on the western side of the campus; and, WHEREAS, on June 2, 1010, the City Council adopted Resolution No. 2010-41 (see attachment) certifying the project EIR. At this same meeting, the City Council adopted Resolution No. 2010-42 (see attachment), approving, with conditions, the Expansion Project. The Council's approval included the Athletic Field Alternative D-2 (described above) with conditions requiring the College to install 30-foot tall retractable netting surrounding certain portions of the Athletic Field. Furthermore, no export of fill (or import) was approved as part of the Council's approval of the grading plan; and, WHEREAS, on October 29, 2012, Marymount formally submitted an application (Conditional Use Permit Revision 'F') to modify the configuration of the Council- approved athletic field and to amend certain conditions of the CUP approved by the City Council in 2010. Included in this submittal is a Grading Permit to amend the permitted grading quantities and a Variance application to revise the Council-approved location of the proposed 30-foot tall athletic field retractable netting. Specifically, Marymount seeks the following three revisions to its current Conditional Use Permit approved by the City Council in 2010: • Remove the four tennis courts approved for the western portion of the campus in order to enlarge the playing area for the proposed Athletic Field and to change the surface material for the Athletic Field from turf grass to synthetic grass. The proposal also changes the Council-approved finished grades and grading quantities, which requires a revision to the Grading Permit to allow export of 17,625 cubic yards of earth material (the project was originally approved as an on-site balanced grading project). MARYMOUNT ENV. SERVICE AGREEMENT-RINCON CONSULTANTS,INC. MAY 7,2013 PAGE 3 • Amend Condition No. 136 to allow up to three outdoor events (including the graduation ceremonies) with amplified sound on the Athletic Field with the approval of a Special Use Permit. • Amend Condition No. 79 to more accurately reflect the limitations on structures for primary occupancy in the identified Geologic Setback Area. WHEREAS, the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and CITY'S Local Guidelines require the preparation of an Environmental Document for the proposed project (either a Mitigated Negative Declaration (MND) or a Supplemental Environmental Impact Report (SEIR)); and, WHEREAS, CONSULTANT represents that it is professionally qualified and able to prepare the necessary Environmental Documentation in compliance with the applicable state laws and state, local guidelines, and in a format consistent with CEQA requirements. NOW, THEREFORE, the parties agree as follows: Section 1. CONSULTANT'S Services. Consultant shall perform professional services by preparing Environmental Documentation for the proposed reconfiguration of the 2010 Council-approved Athletic Field as set forth in Section 5.0 "Scope of Work", which is attached hereto as Exhibit "A" and made part hereof by reference, including the following services: (a) CONSULTANT, shall prepare, under consultation with the CITY, an Administrative Initial Study (IS) to determine whether a Mitigated Negative Declaration (MND) or a Supplemental Environmental Impact Report (SEIR) is required to be prepared for the proposed project pursuant to CEQA. (I) If an MND is required, the following shall be required: (1) a Draft IS / MND and (2) a Final IS / MND. (II) If a SEIR is required, the following shall be required: (1) an Administrative Draft IS-Notice of Preparation, (2) a Final IS - Notice of Preparation (3) an Administrative Draft SEIR, (4) . s MARYMOUNT ENV. SERVICE AGREEMENT—RINCON CONSULTANTS, INC. MAY 7,2013 PAGE 4 a Draft SEIR, (5) a Final SEIR including Responses to Comments on the Draft SEIR, (6) a Mitigation Monitoring and Reporting Program, (7) a Statement of Overriding Consideration (if necessary), and (8) a Notice of Determination as specified in Section 5.0 of Exhibit 'A'. The Environmental Document shall be prepared in compliance with the "Scope of Work" attached as Section 5.0 of Exhibit 'A' and shall contain all items required by CEQA, the State Guidelines, and CITY'S Local CEQA Guidelines. (b) When requested, CONSULTANT shall attend and participate in meetings with CITY staff as well as Public Hearings, which are necessary for the preparation and completion of the environmental documentation. Any meeting for which CONSULTANT is requested to attend by CITY beyond the number of meetings identified in Section 5.0 of Exhibit 'A', CONSULTANT shall be compensated on a time and materials basis at the rates set forth in the "Cost" contained in Section 6.0 of Exhibit 'A', which is attached hereto and incorporated herein by reference. (c) CONSULTANT shall supply CITY with the deliverables described in the "Scope of Work" attached as Exhibit 'A', including the following documents for the proposed project: (1) Administrative Draft Initial Study (IS) Mitigated Negative Declaration (1) Draft Initial Study/ MND (2) Final Initial Study/ MND (3) Notice of Determination Supplemental Environmental Impact Report (1) Administrative Draft and Final Initial Study (IS)/Notice of Preparation (NOP) (2) Administrative Draft and Draft Supplemental Environmental Impact Report (DSEIR) (3) Draft Responses to Comments MARYMOUNT ENV. SERVICE AGREEMENT-RINCON CONSULTANTS, INC. MAY 7,2013 PAGE 5 (4) Administrative Draft and Final Supplemental Environmental Impact Report (including the final responses to comments) (FSEIR) (5) Mitigation Monitoring and Reporting Program (6) Statement of Overriding Considerations (if necessary) (7) Notice of Determination Computer files for all documentation, with processing documents in a format useable by Microsoft Word and Adobe for the City's Website. (d) All final reports, information, data and exhibits prepared or assembled by CONSULTANT or any sub-consultants in connection with the performance of its services pursuant to this Agreement are confidential until released by CITY to the public, and CONSULTANT agrees that they shall not be made available to any individual or organization without prior written consent of the CITY prior to such release. All such reports, information, data and exhibits shall be delivered to CITY upon demand without additional cost or expense to CITY. All charts, tables, figures, and maps, which are prepared with computer-based mapping or spreadsheet programs, shall be provided to CITY in their original formats and in electronic formats as described in Section 1.c of this Agreement. (e) CONSULTANT shall respond to those comments raised by CITY staffs review of the documents in order to facilitate completion thereof. Consultant shall also respond to all comments from the public, responsible agencies, and/or other interested parties regarding the Environmental Document to CITY's satisfaction. Letters identifying the response shall be sent to each commenting public agency pursuant to CEQA. (f) This agreement and the scope of work to be performed by CONSULTANT may only be amended in a written document executed by both of the parties to this agreement. MARYMOUNT ENV. SERVICE AGREEMENT—RINCON CONSULTANTS, INC. MAY 7,2013 PAGE 6 Section 2. Time of Performance. CONSULTANT shall timely perform the services described above as shown in the schedule within the attached Section 7.0 of Exhibit 'A'. Section 3. Compensation. CITY agrees to compensate CONSULTANT, and CONSULTANT agrees to accept in full satisfaction for the services provided for hereunder, a fixed fee not to exceed $69,135.00 for an MND or $80,810.00 for an SEIR, whichever environmental document is required pursuant to CEQA, and which includes all labor and sub-consultant costs, as described in the "Cost" contained in Section 6.0 of Exhibit 'A', which is attached hereto and incorporated herein by reference. In addition, this fixed fee shall include all expenses for printing, word processing, delivery, fax, phones, mileage, etc. Prior to printing of any documents, CONSULTANT shall verify with CITY the total number of documents to reproduce. Not included in this fixed fee are expenses incurred for attending meetings beyond those specified in Exhibit 'A' of this contract; optional tasks as identified within the attached Section 5.0 Exhibit 'A', analysis of key issues in addition to those identified within the attached Section 5.0 of Exhibit 'A', changes in the project description, plans, or scope of work requiring additional work; and printing additional copies of any document beyond the number of copies specified in Sections 5.0 of Exhibit 'A.' The actual costs of CONSULTANT'S services and expenses shall be itemized on the Invoice form, and CITY shall pay CONSULTANT for said undisputed services and expenses. Payments shall be made based upon Consultant's monthly invoices up to the maximum amounts set forth in the following schedule: Benchmak Item Maximum Amount of Payments Mitigated Negative Declaration 'The maximum amount of payments serves as a cap on payments until the correlated benchmark item is completed, therefore completion of one benchmark item allows for billing up to the maximum identified for the following benchmark item. All amounts of payments shall be less the 5% retention. • MARYMOUNT ENV. SERVICE AGREEMENT-RINCON CONSULTANTS, INC. MAY 7, 2013 PAGE 7 :: 1 Benchmark Item MaximumA mount of Payments is Draft Mitigated Negative Declaration $28,815.00 $40,320.00 Final Mitigated Negative Declaration Supplemental Environmental I act Report Initial Study/ Project Description $4,660.00 J Y p Administrative Draft EIR $27,655.00 Draft EIR $20,085.00 Final EIR/Statement of Overriding $28,410.00 Considerations Receipt of Notice of Determination Release of 5% Retention Optiona :..Tasks (as needed)..... Geology Technical Support $10,200.00 Hydrology Technical Support $9,915.00 Biological Resources Assessment $2,800.00 Any work approved pursuant to section 1(f) of this agreement shall be included in the appropriate segment of the foregoing schedule, as determined by the City, and the maximum billing amounts shall be adjusted accordingly. Five percent (5%) of each bill submitted by CONSULTANT shall be held by CITY in a retention account. The retained funds will be released to CONSULTANT when the environmental documentation project is successfully completed by the submittal of the final Notice of Determination/ Statement of Overriding Consideration (if necessary). If CONSULTANT is requested by CITY to correct any identified errors or defects to the environmental documentation with additional data, information or analysis solely as a result of the CONSULTANT'S failure to comply with the requirements of CEQA, or MARYMOUNT ENV. SERVICE AGREEMENT-RINCON CONSULTANTS, INC. MAY 7,2013 PAGE 8 the State or local CEQA Guidelines, CONSULTANT shall provide such revision or supplement at no additional cost to the CITY. If changes to existing laws, rules, regulations or policies of any state, federal or local governmental authority having jurisdiction over the project occur, new, unforeseen issues arise, or comments on the documents are received from attorneys other than the City Attorney during or following the circulation of the draft environmental document, during the term of this Agreement that require modification of the environmental documentation, CONSULTANT will perform such additional services on a time-and- materials basis, at the rates set forth in Section 6.0 of Exhibit 'A'. The CITY and CONSULTANT hereby acknowledge and agree that the terms of CONSULTANT'S compensation are not dependent upon the CITY'S final action on these items or the Project. Section 4. Independent Contractor. CONSULTANT will act hereunder as an independent contractor. This Agreement shall not and is not intended to constitute CONSULTANT as an agent, servant, or employee of the CITY and shall not and is not intended to create the relationship of partnership, joint venture or association between the CITY and CONSULTANT. Section 5. Assignment. This agreement may not be assigned in whole or in part by CONSULTANT, without the prior written consent of CITY. Section 6. Consultant. Responsible Project Manager. The CONSULTANT shall have a Responsible Project Manager who shall be principally responsible for the CONSULTANT'S obligations under this Agreement and who shall serve as principal liaison between CITY and CONSULTANT. The name of the Responsible Project Manager is Abe Leider. Designation of another Responsible Project Manager by CONSULTANT shall not be made without the prior written consent of CITY. MARYMOUNT ENV. SERVICE AGREEMENT-RINCON CONSULTANTS, INC. MAY 7, 2013 PAGE 9 Section 7. Personnel. CONSULTANT represents that it has, or shall secure at its own expense, all personnel required to perform CONSULTANT'S services under this Agreement. CONSULTANT may associate with or employ associates or sub- consultants in the performance of its services under this Agreement, but at all times shall be responsible for their services. CONSULTANT may not employ additional sub- consultants without prior written approval of CITY. Section 8. City: Liaison. CONSULTANT shall perform under the general supervision of the Director of Planning, Building and Code Enforcement of CITY ("Director") or his or her designee, and all communications, instructions and directions on the part of the CITY shall be communicated exclusively through the Director or his or her designee. Any direct communication between CONSULTANT and the project proponent shall be appropriately authorized, as determined by the Director. Section 9. Data and Services to be Furnished by CITY. All information, data, records, reports and maps as are in possession of CITY and necessary for the carrying out of this work shall be available to CONSULTANT without charge. Section 10. Interests of CONSULTANT. The CONSULTANT affirms that it presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the services contemplated by this Agreement. CONSULTANT agrees not to accept any employment or representation during the term of this Agreement or within twelve (12) months after completion of the work under this Agreement which is or may likely make CONSULTANT "financially interested" (as provided in .California Government Code Sections 1090 and 87100) in any decisions made by CITY on any matter in connection with which CONSULTANT has been retained pursuant to this Agreement. No person having any such interest shall be employed by or be associated with the CONSULTANT or any sub-consultant. MARYMOUNT ENV. SERVICE AGREEMENT-RINCON CONSULTANTS, INC. MAY 7,2013 PAGE 10 The parties agree: (a) CITY has sole discretion to direct the work and evaluate the performance of CONSULTANT and CITY retains the right to terminate this Agreement or replace CONSULTANT at any time, in accordance with the provisions of Section 13 herein. (b) CITY has sole discretion to determine the amount of compensation paid to CONSULTANT, in accordance with the provisions of this agreement. (c) CITY shall pay CONSULTANT from a CITY account under the exclusive control of CITY. Section 11. Insurance. CONSULTANT shall submit to CITY certificates indicating compliance with the following minimum insurance requirements, to be maintained during the term of this agreement, not less than one (1) day prior to the beginning of performance under this Agreement. 1. Worker's Compensation Insurance to cover its employees as required by the California Labor Code. The CONSULTANT shall require all subcontractors similarly to provide such compensation insurance for their respective employees. 2. General liability protecting CONSULTANT in an amount no less than $1,000,000 per occurrence, $2,000,000 in the aggregate, for bodily injury, personal injury and property damage. Automobile liability protecting CONSULTANT in an amount not less than $500,000 per accident for bodily injury and property damage. Employer's liability protecting CONSULTANT in an amount no less than $1,000,000 per accident, bodily injury or disease. CONSULTANT agrees to maintain in full force and effect during the term of this Agreement professional errors and omissions insurance in an amount not less than $1,000,000 per claim, and in the aggregate. Such policies of insurance shall: (a) Be issued by an insurance company which is admitted to conduct business in the State of California and which is rated in Best's Insurance Guide with a rating of A VII or better. MARYMOUNT ENV. SERVICE AGREEMENT-RINCON CONSULTANTS, INC. MAY 7,2013 PAGE 11 (b) Except for Worker's Compensation and Employer's Liability, name and list as additional insureds the CITY, its officers and employees. (c) Except for Worker's Compensation and Employer's Liability, such insurance policies shall be primary to any other similar insurance and shall name the CITY, its officers, agents and employees, as additional insureds. Each insurance policy shall contain a provision that prohibits cancellation, without thirty (30) days prior written notice to the CITY. The insurance certificates evidencing such insurance and endorsements naming the CITY, its officers, employees, and agents as additional insureds, shall be submitted to the CITY for review and thereafter the CITY shall have the right to approve or disapprove any insurance procured by CONSULTANT under the standards of this section. Procurement of insurance by CONSULTANT shall not be construed as a limitation of CONSULTANT'S liability or as full performance of CONSULTANT'S duties to indemnify, hold harmless, and defend under this Agreement. (d) Except for Worker's Compensation and Employer's Liability, indemnify the CITY from liability from loss, damage or injury to persons or to property arising from CONSULTANT'S negligent acts in connection with the performance of services under this Agreement. (e) Except for Worker's Compensation and Employer's Liability, include a severability of interest clause substantially similar to the following: "The insurance afforded by this policy applies separately to each insured against whom a claim or suit is made or suit it brought, except with respect to the limit of the insurer's liability." (f) Contain a clause substantially in the following words: "It is hereby understood and agreed that this policy shall not be canceled nor materially changed except upon thirty (30) days prior written notice to the CITY of such cancellation." (g) Cover the operations of CONSULTANT pursuant to the terms of this Agreement. (h) Acceptable to the City Attorney and failure to comply with these insurance requirements shall be a material breach of the Agreement. . s MARYMOUNT ENV. SERVICE AGREEMENT—RINCON CONSULTANTS, INC. MAY 7, 2013 PAGE 12 3. CONSULTANT shall not commence the performance of its services under this contract until the above insurance has been obtained and appropriate Certificates of Insurance have been filed with CITY. CONSULTANT further agrees that a clause substantially similar to this Section 11 will be included in any subcontract executed under this contract. Section 12. Indemnification. CONSULTANT agrees to defend and indemnify the CITY its officers, employees, and agents against, and will hold and save them and each of them harmless from damages to persons or property, penalties, obligations, liabilities, and costs, including but not limited to reasonable costs defense, that may be claimed by any person, firm, entity, corporation, political subdivision or other organization to the extent caused by the negligent acts or intentional tortious acts, errors or omissions of CONSULTANT or those for whom CONSULTANT is legally responsible. However, if any information or data prepared or provided by CONSULTANT is misused by an agent of the City, CONSULTANT shall not be responsible for such misuse of data. Section 13. Termination. The executory provisions of this Agreement may be terminated by CITY upon five (5) days written notice to the CONSULTANT without further action by CITY. The executory provisions of this agreement may be terminated by the CONSULTANT upon thirty (30) days written notice to the CITY. In the event of such termination by the CITY, the CITY shall pay the CONSULTANT for work satisfactorily completed to date of such termination, but in no event to exceed the compensation described in Section 3 of this agreement, based on the percentage of completion of CONSULTANT's work on the date of termination, provided such work is in a form usable by CITY. Section 14. Notice. Any notice or materials required to be given to the CONSULTANT shall be deemed duly and properly given upon delivery, if sent to CONSULTANT postage prepaid to: MARYMOUNT ENV.SERVICE AGREEMENT-RINCON CONSULTANTS, INC. MAY 7,2013 PAGE 13 Joe Power, Principal-in-Charge Rincon Consultants, Inc. 790 East Santa Clara Street Ventura, CA 93001 or personally delivered to CONSULTANT at such address or other address specified to the CITY in writing by CONSULTANT. Any notice or materials required to be given to the CITY shall be deemed duly and properly given upon delivery, if sent to the CITY postage prepaid to: Community Development Department c/o City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 or personally delivered to CITY at such address or other address specified to the CONSULTANT in writing by the CITY. Section 15. Entire Agreement. This agreement represents the entire integrated agreement between CITY and CONSULTANT, and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by both CITY and CONSULTANT. Section 16. Litigation Costs. Should any dispute under this Agreement lead to litigation, the prevailing party shall be entitled to reasonable attorneys' fees for the prosecution of the action. MARYMOUNT ENV. SERVICE AGREEMENT-RINCON CONSULTANTS, INC. MAY 7, 2013 PAGE 14 Section 17. Applicable Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. Venue for any action arising from this Agreement, including but not limited to matters concerning validity, construction, performance or enforcement shall be exclusively in the state of federal courts located in Los Angeles County. Section 18. Business License Required. Consultant shall obtain and maintain a City Business License prior to commencing preparation of the Environmental documentation as outlined in this agreement. Section 19. Merger Clause. This Agreement and its Exhibits are the entire understanding of the parties, and there are no other terms or conditions, written or oral, controlling this matter. In the event of any conflict between the provisions of this Agreement and any of its Exhibits, the provisions of this agreement shall prevail. Section 20. Provisions Cumulative. The foregoing are cumulative and in addition to and not in limitation of any other rights or remedies available to the CITY. Section 21. Anti-Waiver Clause.None of the provisions contained herein shall be waived because of previous failure to insist upon strict performance, nor shall any provision be waived because any other provision has been waived in whole or in part. MARYMOUNT ENV.SERVICE AGREEMENT—RINCON CONSULTANTS, INC. MAY 7,2013 PAGE 15 EXECUTED the day and year first stated above. "CITY" CITY OF RANCHO PALOS VERDES By Susan Brooks, MAYOR ATTEST: CI)/ 4i/C_ _ kitgt& City Clerk "CONSULTANT" Rincon Consultants, Inc. 4 By di° sjEP1i) -S r- ICL=- F'12 t;5 l� (Name/Title) Attachments: Exhibit 'A' - Proposal Scope of Work and Project Schedule