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
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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).
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MAY 7,2013
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• 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)
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MAY 7,2013
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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
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(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.
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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.
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:: 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
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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.
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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.
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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.
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(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.
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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.
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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.
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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.
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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