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HomeMy WebLinkAboutCD 809 B St., 1212 & 1214 Second St. Planning ServicesAgenda Item No: 3. d Meeting Date: September 15, 2014 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: Community Development Prepared by: City Manager Approval)IMLP,( Paul Jensen, Community Development Director (11113) SUBJECT: Resolution of the City Council of the City of San Rafael authorizing the City Manager to execute an Agreement for Professional Planning Services with Lisa Newman (d.b.a. Newman Planning Associates) for assistance needed to prepare an Initial Study and Environmental Impact Report (EIR) for the redevelopment of four parcels located at 809 B St and 1212 and 1214 Second St (Term of Agreement: September 15, 2014 through December 31, 2015, with a total budget amount not -to -exceed $80,675.52 + $11,581 contingency). RECOMMENDATION: Staff recommends that the City Council. 1) Adopt the attached Resolution approving the Professional Services Agreement; and 2) Authorize the City Manager to sign the Amendment to the Reimbursement Agreement BACKGROUND: On August 31, 2012, the applicant submitted an application for redevelopment of the site. The project proposes the demolition of three structures (809 B St, 1212 and 1214 Second St) and construction of a new 4 story, mixed-use building, with 41 residential units (which includes a 35% density bonus) on the approximately 0.57 -acre site. Based on a previous historical analysis that was prepared for the property, one of the buildings proposed for demolition is identified as a historic resource under CEQA and one of the other buildings was identified as needing additional study to determine it's historic significance. Therefore, given that the site hosts a historic resource that is proposed to be demolished, an EIR is required. Based on this information, it has been determined that the project will necessitate the preparation of an EIR. On November 19, 2012, the City Council adopted Resolution No. 13435, authorizing the execution of an Agreement for Professional Planning Services between the City and Lisa Newman (d.b.a. Newman Planning Associates) for the preparation of an Initial Study and Environmental Impact Report (EIR) for the project. The Agreement authorized a term through November 19, 2013 and a not -to -exceed budget of $69,600. In January 2013, Newman Planning Associates started the EIR process and completed the Initial Study, filed a Notice of Preparation (NOP) of an EIR and conducted a scoping meeting before the Planning Commission on July 23, 2013. Following the July 23, 2013 scoping meeting, the applicant requested that the project be put on hold to allow them to explore design changes to address the DRB's comments and well as explore options for the project. During this period of inactivity, the term of the agreement (November 19, 2013) lapsed, and therefore the Agreement expired. FOR CITY CLERK ONLY File No.: `1 LL Council Meeting: fJl SJ2o,,,y _ Disposition: �GSoc,U7�°A+ l3£so3 SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 In August of 2014, the City was notified by the applicant of their desire to reactivate the project and restart the City's processing of the planning applications and the Draft EIR (DEIR). Staff has determined that professional planning services are still needed to assist the Community Development Department to complete the DEIR, including to prepare an Administrative DEIR, publish the Draft EIR for a public review period, hold a public hearing to accept comments on the DEIR before the Planning Commission, respond to any comments on the DEIR through the preparation of a Final EIR (FEIR), conduct a public hearing on the FEIR and complete all other tasks associated with the preparation and filing of the EIR. Therefore, given that the prior Agreement expired and outstanding work by the consultant is necessary to complete the Draft EIR, staff requested an updated proposal from Newman Planning Associates for the estimated costs to complete the EIR process, consistent with the California Environmental Quality Act (CEQA)- ANALYSIS: From time to time, the City enlists the aid of contract planners to supplement the existing in- house staff. Typically, consultants are placed under contract to process specific planning applications and/or to work on special projects when the workload of the Current Planning Division demands additional support. Additionally, contract planners are brought on to process and handle complex and time consuming matters such as preparation of EIR's. Given the limited staffing levels, coupled with the highly technical nature of the CEQA process and necessary historical analysis, it is not possible for staff to prepare an EIR in a thorough and timely manner. The proposed Agreement for Professional Planning Services will permit Ms. Newman to complete the required steps for the required EIR in a shorter time frame than would likely occur using another consultant unfamiliar with the project. Ms. Newman has already prepared the Initial Study for this project and the remaining work needed to complete the Draft EIR was anticipated in the initial Agreement, however, the term of the Agreement lapsed due to the inactivity of the project. Staff notes that the revised scope of work that has been provided by Ms. Newman (dated August 27, 2014 and attached (Exhibit B to Attachment 1) identifies an estimated cost of to complete the required work to prepare the EIR of $46,325, which includes the anticipated time and costs for her services as well as a sub -consultant, Painter Preservation and Planning, that will perform the historical evaluation and analysis. In addition, at the direction of staff, Ms Newman has included a 25% contingency budget ($11,581) to cover any potential changes to the scope of work that may occur as the review and public process progresses or additional work is identified during the course of the project application processing. At this point, a variety of causes might result in the need for such additional work, including a greater number of public comments that require responses in the Final EIR, or need for additional public hearings. The use of the contingency will require approval of the City Manager and the applicant. The Professional Service Agreement is attached to the Draft Resolution (Exhibit A to Attachment 1). In addition, the 161 Amendment to the Reimbursement Agreement between the City and the Developer has been updated to reflect the change in contract amount (Attachment 2). While the Professional Services Agreement is between the City and the Contractor, the Reimbursement Agreement is the agreement between the Developer and the City to memorialize that the Developer is responsible to pay for the Contractor's costs and specify the terms of payment. Staff further notes that the initial contract amount was for $55,680 + 25% contingency amount of $13,920, for a total budget of $69,600. As noted above, the EIR process was started, but not completed. At this point $34,350.52 of the initial budget amount of $69,600 was used. The revised scope of work identifies that the necessary budget to complete the project would be an additional $46,325 (more than the $34,350.52 already used), Therefore, the remaining amount of money that has already been submitted by the applicant would be credited against the revised budget amount. The contract amount includes the money spent to date plus the revised estimate to complete the project. Although the contingency amount (25% or $11,581) is included in the total not -to -exceed budget, it is not anticipated to be used and will only be used if necessary and subject to the approval of the City Manager and applicant. FISCAL IMPACT: Execution of this Agreement for Professional Planning Services would not result in a fiscal impact to the City given that project applicants agree to pay all costs associated with the review and processing of the EIR. The initial contract amount of $55,680 has already been deposited with the City (EDEN Project Account # 41019) and the City has used part of this deposit to pay for the work performed SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3 by the consultant to date ($34,350.52). The consultant will work for the City and will be under the direction of the City, not the applicant. As discussed above, the revised scope of work includes the contingency budget of an addition $11,581 in case additional scope of work is necessary during the processing of the EIR. In addition to the contract amount, the City's master fee schedule requires a 25% administrative fee (to be charged on the entire contract amount) to cover staff time associated with the management of the contract, review of the work product and assistance that will be provided to the consultant. This administrative fee ($11,581) is seaarate from the contract amount and the contingency amount listed above and will be directed to the City's General Fund. In this instance the project developers will reimburse all costs for Ms. Newman's services as identified in the contract as well as pay the 25% administrative fee. Lastly, the planning applications will be processed by City staff. As identified in the City's Master Fee schedule, the developer is responsible for 100% of the staff time and costs associated with the processing of the planning applications. The developer has already submitted the required deposits to start the application processing and will be billed if the deposit is depleted. The fees collected as part of the application processing are deposited in the City's General Fund and are separate from the work identified in the contact which is solely related to the preparation of the EIR. OPTIONS: The following options may be considered by the City Council: Authorize the City Manager to execute the Agreement for Professional Planning Services with Lisa Newman d.b.a. Newman Planning Associates (Staff Recommendation); or 2. Delay the execution of the Agreement for Professional Services, and provide direction to staff. ACTION REQUIRED: It is recommended that the City Council adopt the attached resolution and authorize the signing of the 1st amendment to the .Reimbursement Agreement ATTACHMENTS: 1. Draft City Council Resolution Page No, 5 Exhibit A. Agreement for Professional Planning Services with 7 Attachment A - Newman Planning Associates with Revised Planning Consultant Services Proposal for Redevelopment of Second & B St, dated 812714 from Lisa Newman 2. First Amendment to Reimbursement Agreement between City of San 21 Rafael and Developer THIS PAGE INTENTIONALLY BLANK RESOLUTION NO. 13803 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL PLANNING SERVICES WITH LISA NEWMAN (D.B.A. NEWMAN PLANNING ASSOCIATES) FOR ASSISTANCE NEEDED TO PREPARE AN INITIAL STUDY AND ENVIRONMENTAL IMPACT REPORT (EIR) FOR THE REDEVELOPMENT OF FOUR PARCELS LOCATED AT 809 B ST AND 1212 AND 1214 SECOND STREET (Terms of Agreement: September 15, 2014 through December 31, 2015, with a total budget amount not -to -exceed $80,675.52 + $11,581 contingency) WHEREAS, on November 19, 2012, the City Council adopted Resolution No. 13435, authorizing the execution of an Agreement for Professional Planning Services between the City and Lisa Newman (d.b.a. Newman Planning Associates) for the preparation of an Initial Study and Environmental Impact Report (EIR) for the redevelopment of four parcels located at 809 B St and 1212/1214 2°d St; WHEREAS, the Agreement for Professional Planning Services between the City and Newman Planning Associates was for a total budget amount not to exceed $69,600 with a Term of Agreement ending November 19, 2013; WHEREAS, in January 2013, Newman Planning Associates started the EIR process, completing an Initial Study, filing a Notice of Preparation (NOP) of an EIR and conducting a scoping meeting before the Planning Commission on July 23, 2013; WHEREAS, following the scoping meeting on July 23, 2013, the applicant requested that the project be put on hold to allow them to explore design changes to address the Design Review Board's comments as well as explore options for the project; WHEREAS, during this period of inactivity, the term of the Agreement with Newman Planning Associates (November 19, 2013) lapsed, therefore, the Agreement expired; WHEREAS, in August of 2013, the City was notified by the applicant to reactivate the project and restart the City's processing of the planning applications and the Draft EIR (DEIR); WHEREAS, the City of San Rafael has determined that professional planning services are still needed to assist the Community Development Department to complete the DEIR, including preparation of an Administrative DEIR, publishing the Draft EIR for a public review period, holding a public hearing to accept comments on the DEIR before the Planning Commission, responding to any comments on the DEIR, preparing a Final EIR (FEIR) with response to comments, conducting a public hearing on the FEIR and completing all other tasks associated with the preparation and filing of the EIR; and WHEREAS, at the City's request, Lisa Newman, doing business as Newman Planning Associates (Consultant) has submitted a Revised scope of work and proposal dated August 27, 2014 for completing the remaining tasks associated with providing environmental planning assistance to the City, including a list of anticipated activities/tasks and the hourly rate for performance of these services, and said proposal is attached to the Agreement for Professional Services (Exhibit A of this Resolution); and WHEREAS, all costs associated with the Consultant's planning services for the preparation of the EIR will be reimbursed to the City through cost recovery from project applicants; and WHEREAS, the developer and applicant, Jonathan Parker, on behalf of the property owners, Thomas Monahan, Jonathan Parker, Harold Parker Properties LP, and Jonathan Parker/Tom Monahan, have signed an Amended Reimbursement Agreement to confirm the procedures and funding mechanism for the developer's payment of all environmental planning and consulting costs that will be incurred in connection with the proposed project; and WHEREAS, the Consultant will work on behalf of and at the direction of the City to prepare all necessary documents and studies in accordance with the California Environmental Quality Act, including the preparation of the DEIR and FEIR. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Rafael does hereby authorize the City Manager to execute, on behalf of the City of San Rafael, an Agreement for Professional Planning Services with Lisa Newman (d.b.a. Newman Planning Associates), in the form attached hereto as Exhibit A and incorporated herein by reference. I, ESTHER BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on Monday, the 15th day of September 2014 by the following vote, to wit: AYES: Councilmembers: Colin, Connolly, McCullough & Mayor Phillips NOES: Councilmembers: None ABSENT: Councilmembers: Bushey ESTHER C. BEIRNE, City Clerk Exhibit A Professional Services Agreement with Lisa Newman d.b.a. Newman Planning Associates, with attached Revised Planning Consultant Services Proposal, dated August 27, 2014 Attachment 1-2 AGREEMENT FOR PROFESSIONAL PLANNING SERVICES This Agreement is made and entered into this 15`b day of September, 2014, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and LISA NEWMAN (d.b.a. Newman Planning Associates) (hereinafter "CONTRACTOR"). RECITALS WHEREAS on November 19, 2012, the CITY and CONTRACTOR entered into an Agreement entitled "Agreement for Professional Planning Services" for assistance needed to prepare an Initial Study and Environmental Impact Report (EIR) for the redevelopment of four parcels located at 809 B St and 1212 and 12I4 Second St" (hereinafter, "AGREEMENT"); WHEREAS, after the completion of the Initial Study and Scoping Hearing, the applicant requested that the project be put on hold to allow them to explore design changes and explore options for the project; WHEREAS, during this period of inactivity, the term of the Agreement with CONTRACTOR (November 19, 2013) lapsed, therefore, the Agreement expired; WHEREAS, the City of San Rafael has determined that professional planning services are still needed to assist the Community Development Department to complete the DEIR; WHEREAS, at the City's request, CONTRACTOR has submitted a revised scope of work and proposal dated August 27, 2014 for completing the remaining tasks associated with providing environmental planning assistance to the City, including a list of anticipated activities/tasks and the hourly rate for performance of these services, and said proposal is attached to the Agreement for Professional Services; WHEREAS, CONTRACTOR has performed portions of the Tasks needed to prepare the EIR, however, the Term of Agreement expired while the applicant had put this project on hold. WHEREAS, CITY desires to retain CONTRACTOR to continue to perform professional services required by CEQA and complete the Draft EIR and CEQA process and extend the Term of Agreement and update the budget for the Agreement; and WHEREAS, CONTRACTOR represents has demonstrated that she is qualified to perform such services and is willing to perform such professional services as hereinafter defined. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: PROJECT COORDINATION. A. CITY. The City Manager shall be the representative of the CITY for all purposes under this Agreement. The Planning Manager is hereby designated the PROJECT Exhibit A-1 An IG j� MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. S. CONTRACTOR. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. Lisa Newman of Newman Planning Associates is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR'S PROJECT DIRECTOR shall perform the duties and/or provide professional services related to preparation of all studies and documents related to the preparation of an EIR pursuant to the requirements of CEQA and the City of San Rafael Environmental Procedures manual. These services shall be performed under the supervision of the PROJECT MANAGER. Duties shall include the tasks described in the Planning Consultant Services Proposal to Prepare an EIR for Redevelopment of 815 B St, dated August 27, 2014, attached hereto as Attachment A to this Agreement, and incorporated herein. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4, and perform the duties as described in the Planning Consultant Services Proposal for Redevelopment of Second & B St, attached as Attachment A of this Agreement. 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR $80,675.82 as described in Planning Consultant Services Proposal to Prepare an EIR, jor Redevelopment of 81 S B St, attached as Attachment A of this Agreement. The proposal includes an additional 25% contingency in the amount of $11,581.40 to cover any changes to the scope of work that may occur as the review and public process commences. This contingency may be necessary in the event that additional work is identified during the course of the project application processing. A variety of causes might result in the need for such additional work, including a greater number of public comments that require responses in the Final EIR, or need for additional public hearings. The contingency amount is included in the total budget amount, but will only be used if work outside the scope of work listed in the proposal is incurred. Any work that may result in the use of the contingency budget shall not be performed without prior authorization of the CITY. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR. Exhibit A-2 5. TERM OF AGREEMENT. The services to be performed under this AGREEMENT, as amended, shall commence on September 15, 2014 and extend through December 31, 2015. Upon mutual agreement of the parties, and subject to the approval of the City Manager, the term of this Agreement may be extended for an additional period of I year(s). 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials prepared for or relating to the performance of her duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the performance of her duties under this Agreement, shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. S. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with her performance of her duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. Exhibit A-3 10. INSURANCE. A. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence. 3. If any licensed professional perfonns any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million ($1,000,000) dollars to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. B. The insurance coverage required of the CONTRACTOR by section W.A., shall also meet the following requirements: 1. The insurance shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or coverage for any contribution. 2. Except for professional liability insurance, the insurance policies shall be endorsed for contractual liability and personal injury. 3. Except for professional liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies. 4. CONTRACTOR shall provide to City's Risk Manager, (a) Certificates of Insurance evidencing the insurance coverage required herein, and (b) specific endorsements naming CITY, its officers, agents, employees, and volunteers, as additional named insureds under the policies. 5. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to City's Risk Manager. 6. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. Exhibit A4 7. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 8. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. C. If she employs any person, CONTRACTOR shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both CONTRACTOR and CITY against all liability for injuries to CONTRACTOR's officers and employees. D. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the City's Risk Manager and the City Attorney. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. 11. INDEMNIFICATION. A. Except as provided in Paragraph B., CONTRACTOR shall indemnify, release, defend and hold harmless CITY, its officers, and employees, against any claim, demand, suit, judgment, loss, liability or expense of any kind, including attorney's fees, arising out of or resulting in any way, in whole or in part, from any acts or omissions, intentional or negligent, of CONTRACTOR or CONTRACTOR's officers, agents and employees in the performance of their duties and obligations under this Agreement. B. Where the services to be provided by CONTRACTOR under this Agreement are design professional services to be performed by a design professional as that term is defined under Civil Code Section 2.782.8, CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release, defend and hold harmless CITY, its officers, and employees, against any claim, demand, suit, judgment, loss, liability or expense of any kind, including attorney's fees, that arises out of, pertains to, or relates to the negligence, recklessness, or willful misconduct of CONTRACTOR in the performance of its duties and obligations under this Agreement. 13. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of her duties and obligations under this Agreement. Exhibit A-5 14. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of her duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 15. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 16. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY: Rafl=i Boloyan, Planning Manager Project Manager City of San Rafael 1400 Fifth Ave. (P.O. Box 151560) San Rafael, CA 94915-1560 TO CONTRACTOR: Lisa Newman Project Director Newman Planning Associates 2201 Mulberry Terrace San Rafael, CA 94903 17. INDEPENDENT CONTRACTOR.. For the purposes, and for the duration, of this Agreement, CONTRACTOR, her officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, her officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 18. ENTIRE AGREEMENT -- AMENDMENTS. Exhibit A-6 A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 19. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 20. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 21. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. Exhibit A-7 22. CITY BUSINESS LICENSE I OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code. CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 23. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL YALK:��JJM-,(� NANCY MAC , City Manager ATTEST: ESTHER C. BEIRNE, City Clerk AP ROVED AS TO FORM: 12PE ROBERT F. EPSTEIN, Ci y Atto y CONTRACTOR By: +— Name: Lisa N an Title: Principal, ewman Planning Associates ATTACHMENT A - Planning Consultant Services Proposal to Prepare an EIR for Redevelopment of 815 B St from Lisa Newman of Newman Planning Associates, dated August 27, 2014 Exhibit A-8 EWMAN LANNING SSOCIATES August 27, 2014 Mr. Raffi Boloyan Planning Manager San Rafael Community Development Department 1400 f=ifth Avenue San Rafael, CA 94915 Subject: Planning Consultant Services Proposal to Prepare an EIR for Redevelopment of 815 B Street Dear Raffi, Thank you for the opportunity to provide an updated proposal for environmental planning services regarding the Monahan Parker, Inc. redevelopment project at 815 B Street. As you know, my original proposal to provide CEQA documentation for this project was prepared in October 2012 and a contract was approved in the amount of $69,600, including a contingency budget. After intermittent activity on the project, we completed an Initial Study and attended an EIR Scoping hearing held by the Planning Commission in August 2013. Subsequently, the applicant chose to revise the architectural plans. Revised plans were eventually found complete by City staff in 2014 and reviewed at two Design Review Board hearings in July and August. During this redesign phase, our contract expired. This letter outlines the remaining tasks necessary to fulfill the requirements of the California Environmental Quality Act (CEQA), including preparation of the EIR, Mitigation Monitoring Program, CEQA findings and Statement of Overriding Considerations for action by the City. The Scope of Services provided below identifies g sultant tasks broken down by phases and provides an estimated budget for each phase. As you can see, the time required to complete this work is similar to our previous proposal, however, hourly rates and expense estimates have been updated to reflect current costs. A. Understanding of Project and Needed Services My understanding of the proposed project and service needs is as follows: 1. The Community Development Department has received revised applications from Monahan Parker, Inc. proposing to demolish two existing Victorian residential structures located at 1212/1214 Second Street and a commercial building at 809 B Street and to construct a new four-story, mixed-use building known as 815 B Street. Attachment A-1 ■ 2201 MULBERRY TERRACE SAN RAFAEL, CA 94903 office 415.492.0300 fax 415.492.9549 Mr. Ra(ii 9oloyan August 27, 2014 Page 2 2. The planning applications that are required by the City include Environmental Review, Design Review Permit, Lot Line Adjustment, and a Use Permit. These applications will require review and approval by the Planning Commission unless appealed for final action by the City Council. City staff will manage the planning process. 3. Consistent with the requirements of CEQA, i will prepare the Notice of Preparation, Notice of Completion and Notice of Determination, provide copies of each to the City and file notices with the appropriate public agencies. 4. Based upon comments from the Scoping hearing and NOP public comment period, I will prepare an Administrative Draft EIR and Draft EER. Three copies of the Administrative Draft EIR will be submitted for City staff review. l will revise as appropriate and submit one paper copy and one digital copy of the Draft EIR, consistent with City requirements. City staff will reproduce and publish copies of the Draft EIR for public review. 5. The Draft EIR will include an analysis of three Project alternatives, including the "No Project" alternative, Identification of appropriate alternatives will be made in coordination with City staff, the historical consultant and the applicant. The analysis of project alternatives will incorporate economic data regarding financial feasibility that shall be updated by the applicant. Should additional economic analysis be required, as determined in conjunction with City staff, the services of an economic consultant may be necessary. 6. The Draft EIR will be circulated through the State Clearinghouse and made available to public agencies, utilities and the public for a 45 -day public comment period concluding with a public hearing on the Draft EIR before the Planning Commission that I will attend. After the Planning Commission hearing, I will prepare and submit a Draft Final EIR/Response to Comments document as well as all necessary CEQA resolutions providing findings of fact, findings for a Statement of Overriding Considerations, and a Mitigation Monitoring Program for City staff review and comment. I will revise as appropriate and submit one paper copy and one digital copy of the Final EIR, consistent with City requirements. City staff will reproduce and publish copies of the Final EIR for public review. 7. The Final EIR and project merits will then be considered at a second public hearing before the Planning Commission. I will prepare for and attend the public hearing. 8. The San Rafael Community Development Department will serve as the client. The applicant will fund all contract planning services. 9. Monthly invoices for consultant planning services for Newman Planning Associates (NPA) will be billed at an hourly rate of $150. Painter Preservation & Planning will be a subcontractor to NPA and billing for their services will be included in monthly invoices. Invoices will be processed by the City and paid within 30 days. 10. This planning consultant services cost estimate is valid for 60 days after which we reserve the right to review and revise costs. This proposal provides an estimated Attachment A-2 Attachment A-3