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16-0222_LSA ASSOCIATES, INC_Professional Services AgreementCITY OF SAN JUAN CAPISTRANO PROFESSIONAL SERVICES AGREEMENT This Agreement is made and entered into as of 2016 by and between the City of San Juan Capistrano, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 ("City"), and LSA Associates, Inc., a California Corporation with its principal place of business at 20 Executive Park, Suite 200, Irvine, CA 92614 (hereinafter referred to as "Consultant"). City and Consultant are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement. RECITALS A. City is a public agency of the State of California and is in need of professional services for the following project: An Environmental Impact Report (EIR) Addendum for the proposed 24 Hour Fitness Center Project, Architectural Control (AC) 14-022 (hereinafter referred to as "the Project"). B. Consultant is duly licensed and has the necessary qualifications to provide such services. C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit "A." 2. Compensation. a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit "B." b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $33,400. This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis. 3. Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be fonwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this 1 61147.02100\10974777.1 Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4. Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 5. Time of Performance. Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed ("Notice to Proceed"). Consultant shall complete the services as required in Exhibit "C," attached hereto and incorporated herein. The Notice to Proceed shall set forth the date of commencement of work. 6. Delays in Performance. a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7. Compliance with Law. a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local govemment, including Cal/OSHA requirements. b. If required. Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable. Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. 8. Standard of Care Consultant's services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. 2 61147.02100\10974777.1 9. Assignment and Subconsultant Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. 10. Independent Consultant Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition. Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Commercial General Liability (i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein. Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following: (1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following: (1) Bodily Injury and Property Damage (2) Personal Injury/Advertising Injury (3) Premises/Operations Liability (4) Products/Completed Operations Liability (5) Aggregate Limits that Apply per Project (6) Explosion, Collapse and Underground (UCX) exclusion deleted (7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage (9) Independent Consultants Coverage (iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one 3 51147.02100\10974777.1 insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability (i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). (iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c. Workers' Compensation/Employer's Liability (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the Califomia Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the "Workers' Compensation and Insurance Act," Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer's Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers' compensation coverage of the same type and limits as specified in this section. d. Professional Liability (Errors and Omissions') At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount 4 61147.02100\10974777.1 indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy must "pay on behalf of the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required (i) The following insurance limits are required for the Agreement: Combined Single Limit Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $1,000,000 per occurrence for bodily injury and property damage Employer's Liability $1,000,000 per occurrence Professional Liability $1,000,000 per claim and aggregate (errors and omissions) (ii) Defense costs shall be payable in addition to the limits. (ill) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certiiying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's equivalent) signed by the insurer's representative and Certificate of Insurance (Acord Form 25- S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional Insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. g. Policy Provisions Required (i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including 5 61147.02100\10974777.1 the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant's policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant's indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h. Qualifying Insurers (i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: (1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. i. Additional Insurance Provisions (i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions conceming indemnification. (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is 6 61147.02100\10974777.1 canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative. City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. j. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 12. Indemnification. a. To the fullest extent permitted by law. Consultant shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its officials, officers, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, "Claims') in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attomeys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant's obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers . b. Additional Indemnitv Obligations. Consultant shall defend, with counsel of City's choosing and at Consultant's own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against the City, its officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any settlement paid by the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for the City's attomey's fees and costs, including expert witness fees. Consultant shall reimburse the City, its officials, officers, employees, agents and volunteers, for any and all legal expenses and costs Incurred by each of them in connection 7 61147.02100\10974777.1 therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents and volunteers. 13. Califomia Labor Code Requirements. a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more. Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend. Indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all Califomia Labor Code provisions, which include but are not limited to prevailing wages, employment of apprentices, hours of labor and debarment of contractors and subcontractors. b. If the Services are being performed as part of an applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. 14. Verification of Employment Eliqibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub- subconsultants to comply with the same. 15. Reserved. 16. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of Califomia. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Orange, State of California. 17 Termination or Abandonment a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event. City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said 8 61147.02100X10974777.1 termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days' written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. 18 Documents. Except as otherwise provided in "Termination or Abandonment," above, all original field notes, written reports. Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City. 19. Organization Consultant shall assign Ashley Davis as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City. 20. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above. 21. Notice Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to: CITY: CONSULTANT: City of San Juan Capistrano LSA Associates, Inc. 32400 Paseo Adelanto 20 Executive Park, Suite 200 San Juan Capistrano, CA 92675 Irvine, CA 92614 Attn: Sergio Klotz, AlCP Attn: Ashley Davis Development Services Department and shall be effective upon receipt thereof. 22. Third Party Rights Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant. 61147.02100U 0974777.1 9 23. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initiai employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 24. Entire Aqreement This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. 25. Severability The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal. 26. Successors and Assigns This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 27. Non-Waiver None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing. 28. Time of Essence Time is of the essence for each and every provision of this Agreement. 29. City's Right to Emplov Other Consultants City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects. 30. Prohibited Interests Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that It has not paid nor has it agreed to pay any 10 61147.02100X10974777.1 company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty. City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. [SIGNATURES ON FOLLOWING PAGE] 61147.02100X10974777.1 11 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND LSA ASSOCIATES, INC. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF SAN JUAN CAPISTRANO LSA ASSOCIATES, INC. APPROVED AS TO FORM: By. /^^/J/hlf CityAttorney 61147 02100X10974777 1 12 EXHIBIT A Scope of Services 61147.02100X10974777.1 13 i: SCOPE OF WORK LSA Associates, Inc. (LSA) understands that as part of the proposed project, J.H. Real Estate proposes to develop a new two-story 38,000 square foot (SF) 24 Hour Fitness located within Planning Sector B-1 of the Ortega Plaimed Community. The project site is a 2.65-acre undeveloped parcel, located along the south side of Calle Arroyo, approximately 1,500 feet west of the Rancho Viejo Road/Calle Arroyo intersection. The proposed project would include on-site surface parking for 198 vehicles. Access to the site would be provided via a commercial driveway located along the Calle Arroyo cul-de-sac. Planned uses include a gym, reception area, storage, kid's play area, fitness classrooms, dressing room, and a pool area. The project site is designated "4.0 — Industrial Park" in the City of San Juan Capistrano's (City) General Plan. The Planning Sector B-I land use provisions of the Ortega Community Plan classify "Health Club" as a conditionally permitted use requiring City review and approval of a Conditional Use Permit. The proposed project will require the following approvals: 1) An Architectural Control (AC) Application consisting of plans illustrating the project site, as well as architecture and landscaping proposed as part of the project; 2) A Conditional Use Permit (CUP) application to allow a "Health Club" use to be established and operated on the project site, pursuant to the Planning Sector B-1 provisions of the Ortega Community Plan; and 3) A Planning Commission Determination that the methodology for calculating the parking requirement of 198 parking spaces is consistent with the purpose and intent of Section 9-3.535, Parking, of the Title 9, Land Use Code. The global project site was previously included as part of the plaimed Ventanas Business Center project. The Ortega Planned Community Comprehensive Development Plan (CDP) is an advanced planning document intended to guide the development of uses on a designated planning area in the City. The planned Ventanas Business Center project was proposed on parcels of land within the planning area for the Ortega Planned Community CDP, and, therefore, proposed uses of the project were required to demonstrate consistency with the CDP. An Environmental Impact Report (EIR) was prepared for the Ventanas Business Center project and was certified by the City in May 2008. PROJECT BACKGROUND The Ventanas Business Center project proposed the development of 11 multi-tenant office-industrial buildings with a 0.275 gross floor area ratio (FAR) (0.387 net FAR). In total, the Ventanas Business Center project proposed to develop these uses on a 20.33-gross-acre (13.83-net-acre) parcel at the west terminus of Calle Arroyo, bordering the Interstate 5 (1-5) freeway to the west and the San Juan Creek to the south, with a 236,325 gross square feet (GSF) office-industrial complex. The Ventanas Business Center project site is located within Plarming Sectors B and C of the Ortega Planned Community. 1 City of San Juan Capistrano Environmental Impact Report Proposed 24 Hour Fitness Center The Ventanas Business Center EIR was certified by the City in May 2008. While the EIR was certified in 2008, project approvals for the Ventanas Business Center project have since expired and are no longer valid. While the Ventanas Business Center project is no longer planned to be developed on the larger 20.33-acre site, the Ventanas Business Center EIR remains valid for future development on the site, as long as future development falls within the size and type of uses analyzed in the certified EIR. The proposed project represents 16.9 percent of the building area proposed by the Ventanas Business Center project. Additionally, health club uses are a conditionally permitted land use for the site in accordance with the City's General Plan and the Ortega Community Plan. Therefore, the analysis and conclusions in the certified EIR remain applicable to the proposed project. Section 4.0, Environmental Analysis, of the Ventanas Business Center EIR found all potential impacts associated with the Ventanas Business Center project to be less than significant with implementation of mitigation measures. Therefore, the Ventanas Business Center EIR determined that there would be no significant and avoidable adverse impacts associated with the Ventanas Business Center project. Additionally, no significant growth-inducing impacts were identified as a result of implementation of the Ventanas Business Center project. The work effort proposed below is intended to provide the City with a systematic evaluation of the potential environmental effects of the proposed project compared to the effects of the project analyzed in the Ventanas Business Center EfR, including the rationale and facts supporting the referenced conclusions. INTRODUCTION LSA's preliminary review indicates that an Addendum relying on the previously certified Ventanas Business Center EIR may be possible. The environmental impact analysis should evaluate whether or not there are significant new environmental impacts associated with the proposed project that were not disclosed in the previously certified EIR, or whether new information or circumstances exist that require substantial new environmental impact analysis. Under the 2015 State CEQA Guidelines, several sections describe an Addendum (§15164), a Subsequent EIR (§15162), and a Supplement to an EIR (§15163), defining the circumstances under which an Addendum can be prepared and the circumstances under which a previous EIR can be relied upon for CEQA clearance. Under current State CEQA Guidelines, an existing EIR can be relied upon if a subsequent project will not result in new significant unavoidable impacts and will not substantially increase unavoidable impacts that were addressed in the existing EIR. Thus, at the completion of an updated analysis of a project utilizing the existing EIR, two questions must be asked: • Have any new significant unavoidable impacts been identified that were not identified in the previous, certified EIR? • Are there any significant unavoidable impacts identified in the updated analysis that are substantially more severe than those identified in the previous, certified EIR? If the answer to both of these questions is "no," a subsequent EIR is not required. If the answer to either of these questions is "yes," a subsequent EIR must be prepared. LSA LSA ASSOCIATES, IMC. State CEQA Cuidelines (§15164) state that an Addendum to an EIR shall be prepared "if some changes or additions are necessary but none of the conditions described in Section 15162 calling for preparation of a Subsequent EIR have occurred." Section 15162 of the State CEQA Cuidelines identifies the criteria that would lead to the need for a subsequent EIR. Subsection 15162(a)(1) states that "substantial" changes are those changes that are proposed in the new project that would require "major" revisions of the previous EIR due to new significant environmental effects or a "substantial increase in the severity of previously identified significant effects." Subsection 15162(a)(2) specifies that if changes to the project occur, or changes occur with respect to the circumstances under which the project is undertaken, a subsequent EIR shall be prepared only if these changes are substantial and require major revisions to the previous EIR. A Subsequent EIR need not be prepared simply because circumstances have changed, but only when the changed circumstances require "major" revisions to the previous EIR, due to the involvement of new significant environmental effects or a "substantial increase in the severity of previously identified significant effects." Subsection 15162(a)(3) deals with new information that was not known and could have not been known at the time of the previous EIR "with the exercise of reasonable diligence." If none of the criteria in Section 15162 requiring a subsequent EIR are met, the Lead Agency may prepare a subsequent Negative Declaration or an Addendum, or make a finding that no further documentation is necessary. The Ventanas Business Center EIR found no significant unavoidable adverse impacts based on the environmental assessment of a 236,325 GSF office-industrial project. The proposed 24 Hour Fitness project is a considerably less intense 38,000 SF "health club" that would develop about 16.9 percent of the building area proposed by the Ventanas Business Center project. Therefore, environmental impacts, especially those related to land use, air quality, noise, traffic, and biological resources, would be significantly less than the project analyzed in the Ventanas Business Center EIR. As such, the proposed project would not require major revisions of the previous EIR due to the involvement of new significant environmental effects. Upon review of the updated Traffic Impact Analysis (TIA) prepared for the proposed project, two new impacts were identified at project intersections. Project implementation would result in a direct, significant impact at the La Novia Avenue at Calle Arroyo intersection under Existing Plus Project Conditions. In addition, a cumulative impact has been identified at the Rancho Viejo Road at Paseo Estrada intersection under the proposed project. However, the TIA ultimately concluded that these impacts would be mitigated to a less than significant level through payment of the Capistrano Circulation Fee Program (CCFP) and/or a fair-share of the costs of the recommended intersection improvements. These impacts are not substantially more severe than those identified in the previous, certified EIR. In addition, payment of CCFP fees and fair share costs were identified as mitigation for traffic impacts in the certified Ventanas Business Center EIR. The Addendum will include an appropriate summary of impacts under the previous EIR accompanied by the project-specific impacts identified in the updated TIA prepared for the proposed project. In accordance with the State CEQA Cuidelines, should any new significant unavoidable adverse impacts 3 be identified, an addendum may not be the appropriate document. LSA would immediately appraise the City in the event that new impacts are identified. The environmental work program presented below is based on LSA's knowledge of the project, the previously certified Ventanas Business Center EIR, the Ortega Comprehensive Development Plan, and the updated TIA for the project site. The following work tasks assume that the Addendum is being prepared in order to address only the changes to the project that would result in significant new environmental impacts associated with the proposed project that were not disclosed in the previously certified EIR, or whether new information or circumstances exist that require substantial new environmental impact analysis. In addition, this proposal assumes that the updated TIA prepared by Linscott, Law, and Greenspan (LLG) under a separate contact with the City will be provided to LSA for use in preparation of the Addendum. Task 1: Technical Memorandums and Updated Models Task l.A: Air Quality/Greenhouse Gas Calculations. The Ventanas Business Center EIR included analysis of the project's impacts using criteria set forth in the 2007 Air Quality Management Plan (AQMP) prepared by Soutb Coast Air Quality Management District (SCAQMD) in conjunction with the Southern Califomia Association of Governments. The 2007 AQMP was the appropriate planning document at the time the EIR was prepared for determination of a project's air quality conformance with the Califomia Clean Air Act. At the time the EIR was prepared (2008), analyses of greenhouse gas (GHG) and associated global climate change impacts were not a CEQA threshold. The Ventanas Business Center EIR conducted an air quality analysis for the entire 236,329 GSF of building area. Results of this analysis concluded that a business center on 13.83 net acres would result in less than significant impacts for short-term constmction and long-term operational emissions. The revised project is a less intense development and includes less square footage than the fitness center analyzed as part of the Ventanas Business Center EIR. Therefore, air quality emissions are anticipated to be incrementally less than the project analyzed in the certified Ventanas Business Center EIR. While project-related air quality impacts are anticipated to be less than significant, an air quality and GHG analysis is being proposed to include a project-specific air quality analysis in the Addendum. The air quality analysis will evaluate the proposed health club project for its potential impacts specific to the City and SCAQMD air quality impact requirements. Short-Term Construction Emissions. Air quality impacts potentially occur Ifom constmction activities. LSA will calculate the emissions associated with constmction activities commensurate with the project-specific information provided. For specific details not provided, assumptions based on standard constmction practices will be used. LSA will calculate the construction emissions using the CalEEMod (Version 2013.2.2) air quality model. Standard measures for constmction activities recommended by the SCAQMD will be identified and incorporated as part of the project's standard conditions. SCOPE OF SERVICES 4 Long-Term Mobile and Stationary Source Emissions. The proposed project will potentially affect the number of vehicle trips in the City. Stationary source emissions associated with the proposed project are also expected. Emissions from long-term mobile and stationary sources associated with this project will be calculated with CalEEMod using project-specific traffic data and operational details supplied to LSA and will follow the SCAQMD CEQA Air Quality Handbook guidelines. Global Climate Change/Greenhouse Gases Emissions. Climate change and GHG emissions are an environmental concem being raised on statewide, national, and global levels. Regional, State, and federal agencies are developing strategies to control pollutant emissions that contribute to global warming, including the State's Assembly Bills (AB) 1493 and 32, Executive Orders (EG) S-3-05 and S-01-07, and Senate Bill (SB) 97. The Environmental Protection Agency (EPA) is finalizing national GHG emissions standards under the Clean Air Act, and the National Highway Traffic Safety Administration is finalizing Corporate Average Fuel Economy standards under the Energy Policy and Conservation Act. LSA will calculate the GHG emissions associated with construction activities commensurate with project-specific information provided. For specific details not provided, assumptions based on standard construction practices will be used. Emissions of GHG will be calculated. Standard emissions control measures for construction activities recommended by the SCAQMD will be identified and incorporated as part of the project's standard conditions. The proposed project is expected to result in increased GHG emissions from increased vehicle usage, and on-site energy consumption, as well as lighting and landscape maintenance. Emissions of carbon dioxide (CO2), a key greenhouse gas identified in AB 32, and other major GHGs, such as methane (CH4) and nitrous oxide (N2O) from project-related sources, will be calculated. Task 2: Screencheck Draft Addendum Based on LSA's understanding that the proposed project would result in a reduction in building intensity and would be consistent with the Ortega Comprehensive Development Plan, it appears imlikely that new significant unavoidable impacts would be identified; therefore, the following scope outlines the work program for an Addendum to the Ventanas Business Center EIR. Based on information provided by the City and the Project Applicant, LSA will prepare a Project Description defining the project to be evaluated in the Addendum. The Project Description will include a brief explanation of the decision not to prepare a Subsequent EIR pursuant to State CEQA Cuidelines Section 15162 and the explanation will be supported by substantial evidence. LSA will prepare an Addendum to the Ventanas Business Center EIR utilizing data from the project team and/or other sources and information from any prior studies for recent projects in the area. The Addendum to Ventanas Business Center EIR will summarize the results of the updated technical data and provide sufficient discussion to indicate that no new significant unavoidable environmental impacts would result from project implementation. The Addendum will contain a discussion of each environmental topic contained in the Ventanas Business Center EIR. If, in the course of conducting the environmental analyses for the project, it is determined that a higher level of an environmental document may be required (for example, if it is determined that the 5 project would result in new significant unavoidable impacts), LSA will notify the City immediately and meet with the project team to review the analysis findings and amend the scope and budget as necessary. The Screencheck Draft Addendum will be submitted to City staff in Microsoft Word and Adobe Acrobat Portable Document Format (PDF) formats for review. In addition, LSA will provide five hard copies of the Screencheck Draft Addendum for review. The budget included as part of the proposed Scope of Work assumes one set of consolidated comments (i.e., staff and applicant comments must be consolidated) will be provided by the City to LSA. No more than one round of review and comment are assumed, with no substantial new comments or new analysis required for the second round of revisions. Per Subsection 15164(c) of the State CEQA Cuidelines, an Addendum need not be circulated for public review and would require no response to comments. Some jurisdictions circulate an Addendum for public review and comments to avoid claims that the public is being kept out of the environmental review process. However, this Scope of Work does not include circulation of the Addendum for public review or responding to public or agency comments. Circulation of the document and preparation of responses to public comments can be included as an amendment to this contract. Task 3: Draft Addendum LSA will revise the Screencheck Draft Addendum in response to the consolidated set of comments received from City staff, and will submit the proposed Draft EIR Addendum for Planning Commission recommendation and City Council approval. At this time, LSA will also prepare a revised and updated Mitigation Monitoring Reporting Program, as necessary. LSA will provide 20 hard copies of the proposed Draft EIR Addendum to City staff. The Draft EIR Addendum will be provided to the City in Microsoft Word and Adobe Acrobat PDF formats. As CEQA does not require public review of an Addendum to an EIR, once approved by the City Council, a Final Addendum would be provided to the City. The Final Addendum would become a part of the administrative record to be kept on file with the Ventanas Business Center EIR for future discretionary approvals. LSA will provide five hard copies of the Final EIR Addendum to City staff. The Final EIR Addendum will be provided to the City in Microsoft Word and Adobe Acrobat PDF formats. Task 4: Notice of Determination Upon adoption of the Public Review EIR Addendum, LSA will provide the City with the Notice of Determination (NOD) for submission to the Orange County Clerk. While LSA will prepare the NOD, it is the responsibility of the City to file the NOD and pay the appropriate filing fees with the County Clerk. It should be noted that failure to file the NOD within five business days of project approval will substantially increase the period in which the project approval may be legally challenged. It will 6 be the responsibility of the City to pay any applicable NOD fees, including Califomia Department of Fish and Wildlife filing fees, if applicable. Task 5: Project Management and Meeting Attendance This task includes regular and effective coordination among the LSA Project Manager, LSA technical staff, and the City staff. The project management role provides a mechanism to ensure that there is adequate exchange of information during project start-up and preparation of the Addendum. This task includes notifying the City of problems as they are encountered and working expeditiously to resolve problems. Important elements of this task will be to maintain the project schedule, oversee the budget, and coordinate efforts with other consultants. To facilitate dissemination of information, LSA's Project Manager will maintain ongoing verbal and email communication with the City. LSA staff will attend one kickoff meeting, one Planning Commission hearing, and one City Council hearing. A total of three meetings have been budgeted in this Scope of Work. During the environmental documentation process, LSA will monitor the number of meetings actually attended to determine compliance with this estimate. Any additional meetings beyond the four meetings described above will be attended with the City's prior written approval on a time-and- materials basis. Optional Task 6: Assist with AB 52 Native American Consultation. AB 52 establishes a consultation process with all Califomia Native American Tribes on the Native American Heritage Commission (NAHC) List. The provisions of AB 52 apply to those projects for which a lead agency has issued a notice of preparation (NOP) of an EIR or notice of intent to adopt a negative declaration on or after July 1, 2015. The NOP for the Ventanas Business Center EIR was issued on June 29, 2007, and a reissued NOP is not required for the completion of an Addendum to an EIR. Although the Addendum would not be subject to the provisions of the AB 52 consultation process, it is recognized that the City may desire to conduct consultation given the City's rich cultural history. LSA can assist the City with Native American consultation per the City's guidelines, if requested. This assistance would be optional and would not be initiated unless the City directs LSA to proceed. Actions performed may include all or any combination of the following: contacting the NAHC for a search of the Sacred Lands File and a list of Native American tribes to be invited to consult on the project; preparing and sending a letter via certified mail to each tribe identified by the NAHC, as well as any identified by the City that are not on the NAHC list, that will describe the project and request comments and/or consultation; and, depending on whether a response has been received, contacting the identified tribes by phone and/or email up to two times as necessary to solicit their involvement and record any information the tribe wishes to provide. Details of the consultation, including records of written and verbal communications, will be summarized in a letter report from LSA to the City. 7 EXHIBIT B Schedule of Charges/Payments Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detained progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time- and-materials contract. 61147.02100X10974777.1 14 PROJECT BUDGET LSA proposes to accomplish Tasks 1 through 5 as described in the Scope of Work for an estimated fee of $33,400 (Fee), as shown in Table A, below. With inclusion of Optional Task 6, the total budget would be $36,100. Task 6 would not be initiated without prior City approval. A breakdown of task hours and costs, as well as staff assigned to tasks, is included in Appendix A. LSA fees are charged on an hourly basis, consistent with the Schedule of Standard Contract Provisions and Billing Rates, which is provided in Appendix B. The Fee will not be exceeded without your authorization. This Fee is based on LSA's past experience related to the level of effort needed to complete the environmental process and technical studies for projects of this type. LSA will aggressively identify strategies for reducing the overall work effort while maintaining the client's objectives and the legal adequacy of the work products. Table A. Fee Estimate By Task Task Budget Task 1: Technical Analysis Task 1 .A: Air Quality/Greenhouse Gas $3,900 Task 2; Screencheck Draft Addendum $18,000 Task 3: Draft Addendum $8,000 Task 4: Notice of Determination $500 1 Task 5: Project Management and Meeting Attendance $3,000 Total, Including Direct Costs and Reimbursables $33,400 Optional Task 6: Assembly Bill 52 Native American Consultation $2,700 Total, Including Optional Task 6 $36,100 BUDGET SPECIFICATIONS AND REIMBURSABLE COSTS Direct costs (including outside vendors used for photocopying) are to be reimbursed at cost, unless other arrangements are made in advance, and are not included in the hourly fee for professional services provided above. Appendix A provides a list of LSA's current fee schedule for direct costs. Printing costs are difficult to quantify, since the size and composition (i.e., graphics size and medium) are uncertain at this time. LSA stresses that the cost of reproducing a document is not known until the document is complete. For the purposes of the reimbursable estimate provided above, LSA estimates a cost of $50 per draft document (with any technical information on compact disc [CD]) and $65 for the proposed final document (with any technical information on CD). Reimbursable expenses also include mileage for site visits, team meetings, and public meetings. A summary of LSA's work products and the number of copies anticipated are provided below: LSA LSA ASSOCIATES, INC. City of San Juan Capistrano Environmental Impact Report Proposed 24 Hour Fitness Center LSA's Work Products Deliverable Quantities I Screencheck EIR Addendum • 5 bound copies (technical information will be in PDF format on CD) 1 1 complete electronic copy (Microsoft Word and Adobe Acrobat PDF formats) Draft EIR Addendum 20 bound copies • 20 CDs (technical information in PDF format) 2 bound copies of technical information 1 complete electronic copy (Microsoft Word and Adobe Acrobat PDF formats) Final EIR Addendum • 5 bound copies (technical information will be in PDF format on CD) I complete electronic copy (Microsoft Word and Adobe Acrobat PDF formats) Notice of Determination LSA will prepare and file with State Clearinghouse. The City will be responsible for all required filing fees and public notices. LSA LSA ASSOCIATES, INC. EXHIBIT C Activity Schedule 61147.02100X10974777.1 15 Qty of San Juan Capistrano •• Environmentat Impact Report Proposed 24 Hour Fitness Center PROJECT SCHEDULE SCHEDULE Based on LSA's understanding of the proposed project, the Addendum can be completed within approximately 8 weeks. It should be noted that LSA has demonstrated its ability to maintain project schedules under aggressive deadlines on many projects in Southern Califomia. LSA recommends the City staff and the LSA Project Manager review the attached schedule and make changes as necessary at the project kickoff meeting. LSA assumes two weeks for City review of the Screencheck Draft Addendum in the project schedule. If more than round of review is required for the Sereeneheck Draft Addendum, or the comments received are more extensive than anticipated, the schedule and budget would need to be adjusted accordingly. LSA will aggressively endeavor to keep the project on track. LSA also commits to providing sufficient staff to be available for assignment to the Addendum. The schedule reflects a best effort to complete the project in a timely maimer, while at the same time providing the time and attention necessary to ensure that the highest-quality analysis and products are received. Tasks Duration TASK 1: TECHNICAL ANALYSIS Task 1 .A: Air Quality/Greenhouse Gas* 2 weeks Optional Task 6: Assembly Bill 52 Native American Consultation* 1 week, if requested Total 2 weeks TASK 2: SCREENCHECK DRAFT ADDENDUM (Overlaps with Task I) Preparation of Screencheck Draft Addendum 4 weeks City Review of Screencheck Draft Addendum 2 weeks Total 6 weeks TASK 3: DRAFT ADDENDUM LSA revisions to Screencheck Draft Addendum & LSA preparation of a revised and updated Mitigation Monitoring Reporting Program, if necessary (concurrent with preparation of Screencheck Draft Addendum) 1 week City review of Draft Addendum and Mitigation Monitoring Reporting Program 1-1.5 weeks Submit the proposed Draft EIR Addendum for Planning Commission recommendation and City Council approval 1 day Total 2-2.5 weeks TASK 4: NOTICE OF DETERMINATION Preparation of the Notice of Determination (NOD) 1 day Total 1 day Complete Addendum Schedule 8-8.5 Weeks * Preparation overlaps with preparation of Screencheck Addendum. ISA LSA ASSOCIATES, INC.