HomeMy WebLinkAboutWarner Avenue Owner LP - 2022-04-19 2000 Main Street.
Huntington Beach CA
92W
City of Huntington Beach /97°Povc-b 7 -0
File #: 22-290 MEETING DATE: 4/19/2022
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Sean Joyce. Interim City Manager
VIA: Ursula Luna-Reynosa. Director of Community Development
PREPARED BY: Celeste Coggins. Administrative Analyst
Subject:
Approve and authorize appropriations and execution of a Reimbursement Agreement with
4972 Warner Avenue Owner LP for $243,920 to fund an Environmental Impact Report (EIR) to
be prepared by LSA Associates, Inc. through On Call Environmental (CEQA) Services contract
dated April 5. 2022 for the Huntington Beach Senior Living Project
Statement of Issue:
Transmitted for your consideration is a reimbursement agreement with 4972 Warner Avenue Owner
LP to fund the Environmental Impact Report (EIR) contracted to LSA Associates, Inc.
Financial Impact:
An appropriation of $243,920 from the General Fund to the Community Development Department
Professional Services account 10060201 .69365 is required. These funds will be offset by the
attached reimbursement agreement with the developer of the project, 4972 Warner Avenue Owner
LP
Recommended Action:
A) Approve and authorize the Mayor and the City Clerk to execute a "Reimbursement - Planning -
Agreement Between the City of Huntington Beach and 4972 Warner Avenue Owner LP for Costs
Incurred for Preparation of Environmental Impact Report for Huntington Beach Senior Living Project"
in the amount of $243,920 as prepared by the City Attorney (Attachment No. 1 ). and.
B) Approve an increase in the Community Development Department's professional services listing
authority by $243.920 for the preparation of the Huntington Beach Senior Living Environmental
Impact Report to ensure compliance with Administrative Regulation Number 228, Section 7.1 , and.
C) Appropriate funds as revenues are received in the amount of $243.920 from the General Fund to
the Community Development Department Professional Services Account 10060201.69365 for the On
Call Environmental (CEQA) Professional Services Contract Task Order between the City and LSA
City of Huntington Beach Page 1 of 2 Printed on V13I2022
mweella4 Ley su,"
File #: 22-290 MEETING DATE: 4/19/2022
Associates, Inc., which is funded by a reimbursement agreement.
Alternative Action(s):
The City Council may make the following alternatives motions:
A. Deny the reimbursement between the City and 4972 Warner Avenue Owner LP; or
B. Continue the item and direct staff accordingly
Analysis:
The reimbursement agreement will enable the City to issue a task order to one of the on call
environmental consultants for preparation of an EIR pursuant to the California Environmental Quality
Act (CEQA). The EIR will analyze the potential environmental impacts associated with a proposed
assisted living project located at 4972 and 4952 Warner Avenue (southwest corner of Warner Avenue
and Bolsa Chica Street). The project consists of three applications: Conditional Use Permit (CUP)
No. 2021-024, General Plan Amendment (GPA) No. 2021-004, and Zoning Text Amendment (ZTA)
No. 21-003. Staff has determined that the project is not exempt and preparation of an EIR is the
appropriate environmental document.
The project to be analyzed in the EIR consists of a request to demolish the existing retail commercial
building on the site and construct a new five-story residential care facility consisting of 233 units and
approximately 290,850 square feet of building area. The facility would include one-level
subterranean parking garage providing 268 parking spaces, indoor and outdoor amenities for the
residents, associated hardscape, landscaping, and other related improvements.
Environmental Status:
Projects over which public agencies exercise ministerial authority, such as the subject professional
services contract and reimbursement agreement, are categorically exempt from the California
Environmental Quality Act pursuant to Section 15300.1.
Strategic Plan Goal:
Non Applicable - Administrative Item
Attachment(s):
1. Reimbursement - Planning - Agreement between the City of Huntington Beach and 4972
Warner Ave Owner LP for Costs Incurred for Preparation of Environmental Impact Report for the
Huntington Beach Senior Living Project
2. Executed Professional Services Contract Between the City of Huntington Beach and LSA
Associates, Inc. for On Call Environmental (CEQA) Professional Services with associated Task
Order.
City of Huntington Beach Page 2 of 2 Printed on 4/13/2022
powere13!1r Lea,star"
REIMBURSEMENT - PLANNING - AGREEMENT BETWEEN THE
CITY OP IIUNTINGTON BEACH AND
4972 WARNER AVENUE OW'NfR LP
FOR COSTS INCURRED FOR
PREPARATION OF ENVIRONMENTAL IMPACT REPORT FOR
HUNTINGTON BEACH SENIOR LIVING PROJECT
THIS AGREEMENT ("Agreement") is made and entered into by and between the Cite of'
Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as
"CITY." and 4972 WARNER AVENUE OWNER LP , a Delaware Limited Liablity Company
hereinafter referred to as "DEVELOPER.-
WHEREAS. DEVELOPER is proposing to develop an area within the City of Huntington
Beach known as Huntington Beach Senior Living Project: and
DEVELOPER is required to submit applications to CITY for approval of- various
discretionary matters. such as entitlements, zone changes, land use approvals and environmental
assessments: and
DEVELOPER desires that all entitlements, zone changes, land use approvals and
environmental assessments be processed as soon as possible; and
DEVELOPER desires to have CITY commit sufficient resources to enable the expeditious
processirn, of applications and other necessary documentation. and
Pursuant to California Government Code Section 87103.6. DEVELOPER is allowed to
defray the cost of processing development applications and entitlements by reimbursing CITY for
such costs.
NOW. THEREFORE, in consideration of'the promises and agreements hereinafter made and
exchanged, the parties agree as Iollows:
I. PAYMENT
DEVELOPER agrees to reimburse CITY for its professional services as follows:
g/;igrec/ciiywid65UrluNrritu burs 3-07 1 of 7
A. Within ten (10) days Ibllowiag execution of this Agreement by CITY.
DEVELOPER will make an initial payment to CITY in the amount of One Hundred Thirty Pour
Thousand One Hundred Fifty-Six Dollars ($134,156.00) (hereinafter the "Amount of' Deposit").
Thereafter, on the first day of each third month. DEVELOPER shall replenish the Amount of'
Deposit by paying to CITY an amount equal to the amount paid by CITY for professional services
Funded by this Agreement (the "Quarterly Payment"). The parties acknowledge that the Amount of
Deposit will be used to pay the protessional planning services funded by this Agreement, and it,
prior to the payment of any Quarter[\, Payment, the Amount of Deposit is less than One Thousand
Dollars ($1.000), DEVELOPER shall make the next Quarterly Payment within ten (10) days' notice
Front CITY. DEVELOPER acknowledges that the amount referenced in this Agreement is the
CITY's best estimate ot' the costs for the scrvices described herein. and that the actual cost otsaid
services may be higher. In the event that the actual cost of said services exceeds the estimated
costs, DEVELOPER agrees to pay the actual cost within ten (10) days after receiving CITY's
invoice for same. In the event the actual costs of' Reimbursement Services are less than the
estimated costs, or this Agreement is terminated prior to the completion of land use approvals, CITY
will refund the difference between the actual and estimated costs.
B. The estimated cost to cover twelve (12) months of professional services is
Two Hundred Forty Three Thousand Nine Hundred Twenty Dollars (5243,920.00).
C. A late payment ice of' ten percent (10%) will be assessed if CITY receives
any payment later than the thirtieth (30°i) day after that payment is due but unpaid. In
addition, one and one-ha[f percent (1'/) interest per month shall be added for each month the
payment hereunder is due but unpaid.
g/agree/cil}'N,'ide/surliret/rcimhurs3-07 2 of 7
2. STATEMEN-I. OF INTENT
The amounts reimbursed to CITY pursuant to this Agreement will help defray
CITY's cost of- the professional planning services required to process DEVELOPER's various
development applications and entitlements as set forth herein.
3. EXCLUSIVE. CONTROL BY CI-fY
CITY will maintain eXCIUSIyC control over the work described herein. Nothing in
this Agreement:
A. Shall be deemed to require CITY to approve any plan, proposal, suggestion,
application or request submitted by DEVELOPER.
13. Shall be deemed to limit, in any respect whatsoever. CITY's sole authority to
direct and control the planner(s) assigned to DEVELOPER's various development projects.
C. Shall be deemed to impose any liability on CITY different from any liability
as may otherwise be established by law.
4. CITY EMPLOYEES AND OFFICIALS
DEVELOPER shall employ no CITY official nor any regular CITY employee in the
work performed pursuant to this Agreement. No officer or employee of CITY shall have any direct
financial interest in this Agreement.
5. TIME IS 01" THE ESSENCE
CITY aerees that time is of the essence for the perlbrmance of the work to be funded
pursuant to this Agreement and therefore, thirty (30) days prior to each quarterly invoice,
DEVELOPER shall submit a list of proposed activities to be performed by the CITY for approval
by the Planning Director.
g/agrce/citywidclsurIne tire imburO-07 Jot
6. TERNIINAT10N OF AGREEMENT
Either party may terminate this Agreement at any time with or without cause, upon
ten (10) days' prior written notice to the other party. DEVELOPER shall be responsible for all
costs incurred prior to termination, including any and all costs incurred after notice of termination
has been given.
7. TERIM
This Agreement shall be ettective on the date of its approval by the City Council of
CITY. 1-his Agreement shall expire when terminated as provided herein.
s. NOTICES
Any notices. certificates. or other communications hereunder shall be given either by
personal delivery to DEVELOPER's agent or to CITY as the situation shall warrant, or by enclosing
the same in a scaled envelope, postage prepaid, and depositing the same in the United States Postal
Service, to the addresses specified below: provided that CITY and DEVELOPER, by notice given
hereunder, may designate different addresses to which subsequent notices, certificates or other
commwnications will be sent:
TO CITY: TO DEVELOPER:
City of Huntington Beach 4972 Warner Avenue Owner 1_11
A�I-IT: Ursula Luna-Reynosa Attn: Tom Lawless
2000 Main Street 4000 tvlacArthur Blvd.. Suite 280
Huntington Beach. CA 92648 Newport Beach; CA 92660
9. MODIFICATION
No waiver or modification of anv language in this Agreement shall be valid unless in
writing and duly executed by both parties.
ghigredc itya idelsurfiet/reimhurs3-07 4 of 7
10. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive phrases
at the beginning of the various sections in this Agreement are merely descriptive and are included
solely for convenience of reference only and are not representative of matters included or excluded
From such provisions, and do not interpret, define, limit or describe. or construe the intent of the
parties or affect the construction or interpretation of any provision of this Agreement.
11. INTERPRETATION OF THIS AGREEMENT.
The language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the parties. If any
provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be
unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining
covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent
upon any other unless so expressly provided here. As used in this Agreement, the masculine or
neuter gender and singular or plural number shall be deemed to include the other whenever the
context so indicates or requires. Nothing contained herein shall be construed so as to require the
commission of anv act contrary to law, and wherever there is any conflict between any provision
contained herein and any present or future statute, law, ordinance or regulation contrary to which
the parties have no right to contract, then the latter shall prevail, and the provision of this
Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law.
12. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared
and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the
g/agrec/c it)wide/sr1ncUreimburs3.07 .5 of 7
date ol' its execution and delivery, be deemed an original. Each duplicate original shall be deemed
an original instrument as against any party who has signed it.
13. ININ11GRATION
DEVELOPER shall be responsible for full compliance with the immigration and
naturalization laws of' the United States and shall, in particular, comply with the provisions of the
United States Code regarding employment verification.
14. LEGAL SERVICES SUBCONTRACTING PROHIBITED
DEVELOPER and CITY agree that CITY is not liable for payment of any
subcontractor work invoking legal services, and that such legal services are expressly outside the
scope of services contemplated hereunder. DEVELOPER understands that pursuant to 1-Iuntington
Beach Citv Charter Section 309. the Cite Attorney is the exclusive legal counsel for CITY: and
CITY shall not be liable for payment of any legal services expenses incurred by DEVELOPER.
15. A'I-fORNEVS PEES
In the event suit is brought by either party to construe, interpret and/or enforce the
terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear
its own attorneys fees.
16. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the
State ofCalitornia.
17. SIGNATORIES
Each undersigned represents and warrants that its signature hereinbelow has the
power, authority and right to bind their respective parties to each of the terms of this Agreement,
and DEVELOPER shall indemnify CITY fully for any injuries or damages to CITY in the event that
such authority or power is not, in tact, held by the signatory or is withdrawn.
glagrc✓citywidelsudnaireimburs3-07 6 of 7
18. ENTIRETY
This Agreement, and the attached exhibits, contains the entire agreement between the
parties respecting the subject matter of this Agreement and supersedes all prior understanding and
agreements whether oral or in writing between the parties respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers on 4 JQt:Jr 20 ZZ .
DEVELOPER,
CITY OF HUNTINGTON BEACH, a
4972 WARNER AVENUE OWNER LP municipal corporation of the State of
/ California
By: v
�(e. )r- Mayor
print name yh,y n d 44 t�f
ITS: (circle one)Chairrnart/President�ice President
AND City Clerk
INITIATED AND APPROVED:
By: j
Director of Community Development
print name S ter ar
ITS: (circle one) Secretary/Chief Financial
Officer/Asst.Secretary—Treasurer
REVIEWED AND APPROVED AS TO
CONTENT:
City Manager
COUNTERPART
APPROVED AS TO FORM:
City Attorney f
g/4gavatywidcsurfwUrnmtmn1-67 7 of 7
18. ENTIRETY
This Agreement, and the attached exhibits, contains the entire agreement between the
parties respecting the subject matter of this Agreement and supersedes all prior understanding and
agreements whether oral or in writing between the parties respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers on `� 20 22 .
DEVELOPER
CITY OF HUNTINGTON BEACH, a
4972 WARNER AVENUE OWNER LP municipal corporation of the State of
California
By.
b00
0y,�,4 � T &
print name !�• """ TTL�'
ITS: (circle one)Chairman/PresidenWice President
AND City Clerk
INITIATED
r
By:
Director of Community Development
print name
ITS: (circle one) Secretary/Chief Financial
Officer/Asst. Secretary—Treasurer
REVIEW AN APPROVED AS TO
CO NT:
City Manager
CG U NTERPAItT
APPROVED AS T
C' Attorney
g/agree/6"ide/surfnct/mimbun3-07 7 of 7
City of Huntington Beach
2000 Main Street ♦ Huntington Beach, CA 92648
(714) 536-5227 ♦ www.huntingtonbeachca.gov
Office of the City Clerk
Robin Estanislau, City Clerk
April 26, 2022
4972 Warner Avenue Owner LP
Attn: Tom Lawless
4000 MacArthur Blvd., Suite 280
Newport Beach, CA 92660
Dear Mr. Lawless:
Enclosed is a fully executed copy of the Reimbursement — Planning — Agreement
between the City of Huntington Beach and 4972 Warner Avenue Owner LP for Costs
Incurred for Preparation of Environmental Impact Report for Huntington Beach Senior
Living Project approved by City Council on April 19, 2022.
Sincerely,
�&�Qno, d
Robin Estanislau, CMC
City Clerk
RE:ds
Enclosure
Sister Cities: Anjo, Japan Waitakere, New Zealand
PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON 13EACI-I AND
LSA ASSOCIATES, INC.
FOR
ON-CALL, ENVIRONMENTAL (CEQA) SERVICES
THIS AGREEMENT ("Agreement") is made and entered into by and between the City of
Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as
"CITY," and LSA ASSOCIATES, INC., a California Corporation hereinafter referred to as
"CONSULTANT."
WHEREAS, CITY desires to engage the services of a consultant to On-Call Environmental
(CEQA) Services; and
Pursuant to documentation on file in the office of the City Clerk, the provisions of the
Huntington Beach Municipal Code, Chapter 3.03, relating to procurement of professional service
contracts have been complied with; and
CONSULTANT has been selected to perform these services,
NOW, THE'•REFORE, it is agreed by CITY and CONSUL:FANf as follows:
I. SCOPE" OF SERVICES
CONSULTANT shall provide all services as described in Exhibit "A," which is
attached hereto and incorporated into this Agreement by this reference. These services shall
sometimes hereinafter be referred to as the "PROJECT."
CONSULTANT hereby designates Ryan Bensly who shall represent it and be its
sole contact and agent in all consultations with CITY during the performance of this Agreement.
2. CITY STAFF ASSISTANCE
CITY shall assign a staff coordinator to work directly with CONSULTANT in the
performance of this Agreement.
22-11066276972 1 of 11
143
3. TERM: TIME OF PERFORMANCE
"rime is of the essence of this Agreement. The services of CONSULTANT are to
commence on _74709/L 0,57- , 2094 (the "Commencement Date"). This Agreement
shall automatically terminate three (3) years from the Commencement Date, unless extended or
sooner terminated as provided herein. All tasks specified in Exhibit "A" shall be completed no
later than three (3) years from the Commencement Date. The time for performance of the tasks
identified in Exhibit "A" are generally to be shown in Exhibit "A." This schedule may be
amended to benefit the PROJECT if mutually agreed to in writing by CITY and CONSULTANT.
In the event the Commencement Date precedes the Effective Date, CONSULTANT
shall be bound by all terms and conditions as provided herein.
4. COMPENSATION
In consideration of the performance of the services described herein, CITY agrees to
pay CONSULTANT on a time and materials basis at the rates specified in Exhibit "13," which is
attached hereto and incorporated by reference into this Agreement, a fee, including all costs and
expenses, not to exceed Eight Hundred Fifty Thousand Dollars ($850,000).
5. EXTRA WORK
In the event CITY requires additional services not included in Exhibit "A" or
changes in the scope of services described in Exhibit "A," CONSULTANT will undertake such
work only after receiving written authorization from CITY. Additional compensation for such extra
work shall be allowed only if the prior written approval of CITY is obtained.
6. METHOD OF PAYMENT
CONSULTANT shall be paid pursuant to the terms of Exhibit "B."
22-11066276972 2 of 11
144
7. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS
CONSULTANT agrees that title to all materials prepared hereunder, including,
without limitation, all original drawings, designs, reports, both field and office notices, calculations,
computer code, language, data or programs, maps, memoranda, letters and other documents, shall
belong to CITY, and CONSULTANT shall turn these materials over to CITY upon expiration or
termination of this Agreement or upon PROJECT completion, whichever shall occur first. These
materials may be used by CITY as it sees fit.
8. HOLD HARMLESS
A. CONSULTANT hereby agrees to protect, defend, indemnify and hold
harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from
and against any and all claims, damages, losses, expenses, judgments, demands and defense costs
(including, without limitation, costs and fees of litigation of every nature or liability of any kind or
nature) arising out of or in connection with CONSULTANT's (or CONSULTANT's subcontractors,
if any) negligent (or alleged negligent) performance of this Agreement or its failure to comply with
any of its obligations contained in this Agreement by CONSULTANT, its officers, agents or
employees except such loss or damage which was caused by the sole negligence or willful
misconduct of CITY. CONSULTANT will conduct all defense at its sole cost and expense and
CITY shall approve selection of CONSULTANT s counsel. This indemnity shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The policy limits
do not act as limitation upon the amount of indemnification to be provided by CONSULTANT.
B. To the extent that CONSULTANf performs "Design Professional Services" within
the meaning of Civil Code Section 2782.8, then the following Hold Harmless provision applies in
place of subsection A above:
22-11066276972 3 of 11
145
"CONSULTANT hereby agrees to protect, defend, indemnify and hold harmless
CITY and its officers, elected or appointed officials, employees, agents and volunteers, from and
against any and all claims, damages, losses, expenses, demands and defense costs (including,
without limitation, costs and fees of litigation of every nature or liability of any kind or nature) to
the extent that the claims against CONSULTANT arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of'CONSULI'ANT. In no event shall the cost to defend charged
to CONSULTANT exceed CONSULTANT's proportionate percentage of fault. However,
notwithstanding the previous sentence, in the event one or more other defendants to the claims
and/or litigation is unable to pay its share of defense costs due to bankruptcy or dissolution of the
business, CONSULTANT shall meet and confer with CITY and other defendants regarding unpaid
defense costs. The duty to indemnify, including the duty and the cost to defend, is limited as
provided in California Civil Code Section 2782.8.
C. Regardless of whether subparagraph A or B applies, CITY shall be reimbursed by
CONSULTANT for all costs and attorney's fees incurred by CITY in enforcing this obligation.
This indemnity shall apply to all claims and liability regardless of whether any insurance policies
are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be
provided by CONSULTANT.
9. PROFESSIONAL LIABILITY INSURANCE
CONSULTANT shall obtain and furnish to CITY a professional liability insurance
policy covering the work performed by it hereunder. This policy shall provide coverage for
CONSULTANT's professional liability in an amount not less than One Million Dollars
($1,000,000.00) per occurrence and in the aggregate. The above-mentioned insurance shall not
contain a self-insured retention without the express written consent of CITY; however an insurance
22-11066276972 4 of 11
146
policy "deductible" of Ten Thousand Dollars ($10,000.00) or less is permitted. A claims-made
policy shall be acceptable if the policy further provides that:
A. The policy retroactive date coincides with or precedes the initiation of the
scope of work (including subsequent policies purchased as renewals or
replacements).
B. CONSULTANT shall notify CITY of circumstances or incidents that might
give rise to future claims.
CONSULTANT will make every effort to maintain similar insurance during the
required extended period of coverage following PROJECT completion. If insurance is terminated
for any reason, CONSULTANT agrees to purchase an extended reporting provision of at least two
(2) years to report claims arising from work performed in connection with this Agreement.
If CONSULTANT fails or refuses to produce or maintain the insurance required by
this section or fails or refuses to furnish the CITY with required proof that insurance has been
procured and is in force and paid for, the CITY shall have the right, at the CITY's election, to
forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid
for its time and materials expended prior to notification of termination. CONSUL:CANT waives the
right to receive compensation and agrees to indemnify the CITY for any work performed prior to
approval of insurance by the CITY.
10. CERTIFICATE OF INSURANCE
Prior to commencing performance of the work hereunder, CONSULTANT shall
furnish to CITY a certificate of insurance subject to approval of the City Attorney evidencing the
foregoing insurance coverage as required by this Agreement; the certificate shall:
A. provide the name and policy number of each carrier and policy;
B. state that the policy is currently in force; and
22-110661276972 5 of 11
147
C. shall promise that such policy shall not be suspended, voided or canceled by
either party, reduced in coverage or in limits except after thirty (10) days'
prior written notice; however, ten (10) days' prior written notice in the event
of cancellation for nonpayment of premium.
CONSULTANT shall maintain the foregoing insurance coverage in force until the
work under this Agreement is fully completed and accepted by CITY.
The requirement for carrying the foregoing insurance coverage shall not derogate
from CONSULTANT's defense, hold harmless and indemnification obligations as set forth in this
Agreement. CITY or its representative shall at all times have the right to demand the original or a
copy of the policy of insurance. CONSULTANT shall pay, in a prompt and timely manner, the
premiums on the insurance hereinabove required.
11. INDEPENDENT CONTRACTOR
CONSULTANT is, and shall be, acting at all times in the performance of this
Agreement as an independent contractor herein and not as an employee of CITY. CONSULTANT
shall secure at its own cost and expense, and be responsible for any and all payment of all taxes,
social security, state disability insurance compensation, unemployment compensation and other
payroll deductions for CONSULTANT and its officers, agents and employees and all business
licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder.
12. TERMINATION OF AGREEMENT
All work required hereunder shall be performed in a good and workmanlike manner.
CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and
whether or not the PROJECT is fully complete. Any termination of this Agreement by CITY shall
be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. In the
22-11066276972 6 of 11
148
event of termination, all finished and unfinished documents, exhibits, report, and evidence shall, at
the option of CITY, become its property and shall be promptly delivered to it by CONSULTANT.
13. ASSIGNMENT AND DELEGATION
This Agreement is a personal service contract and the work hereunder shall not be
assigned, delegated or subcontracted by CONSULTANT to any other person or entity without the
prior express written consent of CITY. If an assignment, delegation or subcontract is approved, all
approved assignees, delegates and subconsultants must satisfy the insurance requirements as set
forth in Sections 9 and 10 hereinabove.
14. COPYRIGHTS/PATENTS
CITY shall own all rights to any patent or copyright on any work, item or material
produced as a result of this Agreement.
15. CITY EMPLOYEES AND OFFICIALS
CONSULTANT shall employ no CITY official nor any regular CITY employee in
the work performed pursuant to this Agreement. No officer or employee of CITY shall have any
financial interest in this Agreement in violation of the applicable provisions of the California
Government Code.
16. NOTICES
Any notices, certificates, or other communications hereunder shall be given either by
personal delivery to CONSULTANT,s agent (as designated in Section 1 hereinabove) or to CITY as
the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and
depositing the same in the United States Postal Service, to the addresses specified below. CITY and
CONSULTANT may designate different addresses to which subsequent notices, certificates or
other communications will be sent by notifying the other party via personal delivery, a reputable
overnight carrier or U. S. certified mail-return receipt requested:
22-11066276972 7 of 11
149
TO CITY: TO CONSULTANT:
City of Huntington Beach LSA Associates, Inc.
A"I'TN: Director of Community ATTN: Ryan Bensley
Development 20 Executive Park, Suite 200
2000 Main Street Irvine, CA 92614
Huntington Beach, CA 92648
17. CONSENT
When CITY's consent/approval is required tinder this Agreement, its
consent/approval for one transaction or event shall not be deemed to be a consenUapproval to any
subsequent occurrence of the same or any other transaction or event.
t8. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid unless in
writing and duty executed by both patties.
19. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive phrases
at the beginning of the various sections in this Agreement are merely descriptive and are included
solely for convenience of reference only and are not representative of matters included or excluded
from such provisions, and do not interpret, define, limit or describe, or construe the intent of the
parties or affect the construction or interpretation of any provision of this Agreement.
20. INTERPRETATION OF THIS AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the parties. If any
provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be
unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining
covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent
upon any other unless so expressly provided here. As used in this Agreement, the masculine or
22-11066276972 8 of 11
150
neuter gender and singular or plural number shall be deemed to include the other whenever the
context so indicates or requires. Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict between any provision
contained herein and any present or future statute, law, ordinance or regulation contrary to which
the parties have no right to contract, then the latter shall prevail, and the provision of this
Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law.
21. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared
and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the
date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed
an original instrument as against any party who has signed it.
22. IMMIGRATION
CONSULTANT shall be responsible for full compliance with the immigration and
naturalization laws of the United States and shall, in particular, comply with the provisions of the
United States Code regarding employment verification.
23. LEGAL SERVICES SUBCONTRACTING PROHIBITED
CONSULTANT and CITY agree that CITY is not liable for payment of any
subcontractor work involving legal services, and that such legal services are expressly outside the
scope of services contemplated hereunder. CONSULTANT understands that pursuant to
Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for
CITY; and CITY shall not be liable for payment of any legal services expenses incurred by
CONSULTANT.
22-11066276972 9 of 11
151
24. A"ITORNEY'S PEES
In the event suit is brought by either party to construe, interpret and/or enforce the
terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear
its own attorney's fees, such that the prevailing patty shall not be entitled to recover its attorney's
fees from the nonprevailing party.
25. SURVIVAL
Terms and conditions of this Agreement, which by their sense and context survive
the expiration or tennination of this Agreement, shall so survive.
26. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the
State of California.
27. SIGNATORIES
Each undersigned represents and warrants that its signature hereinbelow has the
power, authority and right to bind their respective parties to each of the terms of this Agreement,
and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
28. ENTIRETY
The parties acknowledge and agree that they are entering into this Agreement freely
and voluntarily following extensive arm's length negotiation, and that each has had the opportunity
to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and
agree that no representations, inducements, promises, agreements or warranties, oral or otherwise,
have been made by that party or anyone acting on that parry's behalf, which are not embodied in this
Agreement, and that that party has not executed this Agreement in reliance on any representation,
inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this
22-11066276972 10 of 11
152
Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the
parties respecting the subject matter of this Agreement, and supersede all prior understandings and
agreements whether oral or in writing between the parties respecting the subject matter hereof.
29. EFFECTIVE DATE
This Agreement shall be effective on the date of its approval by the City Council.
This Agreement shall expire when terminated as provided herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers.
CONSULTANT,
LSA ASSOCIATES, INC. CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
t'J py California
By:_ YV 10�3---
print n me Mayor
ITS: (circle one)Cfntirrnar< residcn ice President
A GG � City Clerk
EY µid INITIATED AND APPROVED:
print name
ITS: (circle one)Secrctar Chief Financial Officer Asst. Director of Community Development
Secretary-Treasurer
REVIEWED AND APPROVED:
COUNTERPART City Manager
APPROVED AS TO FORM:
City Attorney
22-11066276972 11 of 11
153
Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the
parties respecting the subject matter of this Agreement, and supersede all prior understandings and
agreements whether oral or in writing between the parties respecting the subject matter hereof.
29. EFFECTIVE DATE
This Agreement shall be effective on the date of its approval by the City Council.
This Agreement shall expire when terminated as provided herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers.
CONSULPANT,
LSA ASSOCIATES, INC. CITY OF HUNTFNGTON BEACH, a
municipal corporation of the State of
Cal' rnia •
By:
print name MMa���yor
ITS: (circle one)Chairman/PresidenW ice President /
AND dity Clerk
By: INITIATED AND
A\PP IR/\ ED:
print name I /�,� ,� ( �' _ \ \ L
ITS: (circle one)Secretary/Chief Financial Officer/Asst. y Director
Community
VVV
Secretary- rrcasurer Director of Community Development
RF EWEll AN APPROVED:
COUNTERPART
City Manager
APPROVED RM:
City Attorney
22-11066/276972 11 of l l
154
EXHIBIT "A"
A. STATEMENT OF WORK: (Narrative of work to be performed)
CONSULTANT shall provide consulting services on an "as-needed" basis for projects to be
determined during the term of the agreement. During the term of the agreement, CITY shall
issue task orders based upon scope of services, work schedule, and fee proposal submitted to
City for its review and approval.
B. CONSULTANT'S DUTIES AND RESPONSIBILITIES:
The Consultant may be asked to provide any number of services pertaining to the City's
implementation of CEQA, including, but not limited to, the following:
• Conduct preliminary review of projects for CEQA purposes
• Prepare CEQA documents for the City, including, but not limited to:
o Initial Studies in support of ND/MND/MMRP
o Addendums to Environmental Impact Reports
o Environmental Impact Reports
o Notices of hrtent/Preparation/Determination/Exemption
• Prepare technical studies (e.g. — Traffic, Air Quality, Noise, Cultural Resources,
Biological Resources, Energy, and Greenhouse Gas Emissions)
• Provide peer review of CEQA documents prepared by project applicants
• Review CEQA/NEPA documents from neighboring jurisdictions/agencies
• Required consultations (i.e. NAHC)
• Conduct scoping meetings
• Attend public meetings and hearings
C. CITY'S DUTIES AND RESPONSIBILITIES:
I. Furnish scope of work request for each project
2. Prepare associated reimbursement agreements and collect developer payments in a
timely mariner in conjunction with projects assigned.
D. WORK PROGRAM/PROJECT SCHEDULE:
A project schedule will be developed for each project assigned by City.
1
Exhibit B
155
EXI-11131T "B"
Payment Schedule (Hourly Payment)
A. Hourly ate
CONSULTANT'S fees for such services shall be based upon the following hourly rate and cost
schedule:
PLEASE SEE A'17ACHED FEE PROPOSAL.
B. Travel. Charges for time during travel are not reimbursable
C. Billint
I. All billing shall be done monthly in fifteen (15) minute increments and matched to an
appropriate breakdown of the time that was taken to perform that work and who
performed it.
2. Each month's bill should include a total to date. That total should provide, at a glance,
the total fees and costs incurred to date for the project.
3. A copy of memoranda, letters, reports, calculations and other documentation prepared
by CONSULTANT may be required to be submitted to CITY to demonstrate progress
toward completion of tasks. In the event CITY rejects or has comments on any such
product, CITY shall identify specific requirements for satisfactory completion.
4. CONSULTANT shall submit to CITY an invoice for each monthly payment due.
Such invoice shall:
A) Reference this Agreement;
B) Describe the services performed;
C) Show the total amount of the payment due;
D) Include a certification by a principal member of CONSULTANT's firm that
the work has been performed in accordance with the provisions of this
Agreement; and
E) For all payments include an estimate of the percentage of work completed.
Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is
making satisfactory progress toward completion of tasks in accordance with this
Agreement, CITY shall approve the invoice, in which event payment shall be made
within thirty (30) days of receipt of the invoice by CITY. Such approval shall not be
unreasonably withheld. If CITY does not approve an invoice, CITY shall notify
CONSULTANT in writing of the reasons for non-approval and the schedule of
performance set forth in Exhibit "A" may at the option of CITY be suspended until
the parties agree that past performance by CONSULTANT is in, or has been brought
into compliance, or until this Agreement has expired or is terminated as provided
herein.
2
Exhibit B
156
5. Any billings for extra work or additional services authorized in advance and in writing
by CITY shall be invoiced separately to CITY. Such invoice shall contain all of the
information required above, and in addition shall list the hours expended and hourly
rate charged for such time. Such invoices shall be approved by CITY if the work
performed is in accordance with the extra work or additional services requested, and if
CITY is satisfied that the statement of hours worked and costs incurred is accurate.
Such approval shall not be unreasonably withheld. Any dispute between the parties
concerning payment of such an invoice shall be treated as separate and apart from the
ongoing performance of the remainder of this Agreement.
3
Exhibit B
157
EXHIBIT B
�l r
' ;• N I CITY OF IIUNTINGTON BEACH
QUALIFICATIONS FOR ON-CALL)CEOA)CONSULTING SERVICES
Table A: LSA Hourly Billing Rates Effective May 2021
Hourly
Rate
Ran e1•z
Planning Environmental Transportation it/Noise Cultural/ Biology GIS
Paleontological
Resources
Principal Principal Principal Princi at Principal Principal Principal $175-390
Associate Associate Associate Associate Associate Associate Associate $125-245
Senior Senior Senior Senior Air Senior Cultural Senior Biologist/ Senior $115-220
Planner Environmental Transportation Quality/Noise Resources Botanist/Wildlife GIS
Planner Planner/ Specialist Manager/ Biologist/Ecologist/ Specialist
Engineer Paleontologist Soil Scientist/
Herpetologist/
Arborist
Planner Environmental Transportation Air Quality Noise Cultural Biologist/Botanist/ GIS $85-150
Planner Planner/ Specialist/ Resources Wildlife Biologist/ Specialist
Engineer Climate Change Manager Ecologist/Soil
Specialist Archaeologist/ Scientist)
Architectural Herpetologist/
Historian/ Arborist
Paleontologist
Assistant Assistant Assistant Air Quality/Noise Cultural Assistant Biologist/Assistant $85-100
Planner Environmental Transportation Analyst Resources Botanist/Wildlife GIS
Planner Planner/ Analyst Biologist/Ecologist/Specialist
Engineer Soil Scientist/
Herpetologist/
Arborist
Field Services
Senior Field Crew/Field Crew $80-100
Office Services
Graphics $115-150
Marketing $75-125
Office Assistant $65-115
Project Assistant $70-145
Research Assistant/Intern $50-80
Word Processing/Technical Editing $95-125
1. The hourly rate for work involving actual expenses in court(e.g., giving depositions or similar expert testimony)
will be billed at$400 per hour regardless of job classifications.
2. Hourly rates are subject to review at least annually, on or about June 1 of each year, and may be adjusted up to
4 percent to reflect changing labor costs at LSA's discretion at that time.
Fee Schedule I P a g e
158
g{ CITY OF HUNTINGTON BEACH
QUALIFICATIONS FOR ON-CALL(CEQA)CONSULTING SERVICES
Table B: LSA In-House Direct Costs Effective May 20211
6• Description
Reproduction 8.5 x 11 BM $0.07 per pace GPS Unit $75.00 per day
Reproduction (8.5 x 11) $0.40 per page Total Station Surveying $50.00 per day
Color Instrument
Reproduction 11 x 17 BM $0.10 per page Level Laser or Optical) $25.00 per day
Reproduction 11 x 17 Color $0.75 per page Laser Rangefinder $25.00 per day
CD Production $5.00 per CD Sound Meter $75.00 per day
USB Flash Drive $5.00 per drive Sound Meter with Velocity $85.00 per day
Transducer
Plotting $3.75 per s . ft. Aerial Photo Cost
Aerial Drone $200.00 per day Boat Rental $125.00 per day
Mileage On-Road Current federal rate Water Quality Meter $25.00 per day
Mileage Off-Road Current federal rate Night Vision Goggles $50.00 per unit per
ni ht
Direct costs shall be reimbursed at cost plus 10 percent.
Fee Schedule I P a g e
159