Agenda packet — Gilroy City Council, November 4, 2024 (part 3 of 3)

City of Gilroy

STAFF REPORT
Agenda Item Title: Approval of a second Amendment to the Agreement with Circlepoint, Inc. for the Gilroy Data Center
Project Environmental Impact Report in the amount of
$36,757.25 for a total project cost of $244,009.30.

Meeting Date: November 4, 2024
From: Jimmy Forbis, City Administrator
Department: Community Development
Submitted By: Sharon Goei, Community Development Director Prepared By: Cindy McCormick, Planning Manager
STRATEGIC PLAN GOALS Not Applicable

RECOMMENDATION
Approve a Second Amendment to the Agreement with Circlepoint, Inc. for the Gilroy Data Center Project Environmental Impact Report in the amount of $36,757.25 for a total project cost of $244,009.30 and authorize the City Administrator to execute the contract amendment and associated documents.

EXECUTIVE SUMMARY
Amazon Web Services (AWS), the applicant for the Gilroy Data Center project, made modifications to their project description that result in out-of-scope work and additional costs associated with preparation of the Environmental Impact Report (EIR) by Circlepoint, Inc. (Consultant). The requested modifications by AWS require the Consultant to complete additional research, make modifications to work already completed on the Draft EIR (DEIR), review the entire Draft EIR to ensure or remedy any consistency or methodological issues, coordinate with City staff and the applicant, and attend additional meetings with City staff and the applicant. The requested amendment is necessary to allow the Consultant to complete the final EIR documentation. The requested modifications result in $36,757.25 of additional costs for a total project cost of $244,009.30 for the Gilroy Data Center Project EIR.

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Approval of a second Amendment to the Agreement with Circlepoint, Inc. for the Gilroy Data Center Project Environmental Impact Report in the amount of $36,757.25 for a total project cost of $244,009.30.

City of Gilroy City Council Page 2 of 3 November 4, 2024 1 7 BACKGROUND
Amazon Web Services (AWS) submitted an application to construct and operate a data center on an industrial zoned vacant property, located on Camino Arroyo near the Gilroy Outlets. The 50-acre Gilroy Data Center project will consist of the following components to be constructed in two phases. Phase I would include the first single-story (approximately 35-foot high) data center building of approximately 218,000 square feet (Building 1), a security building, a substation/switchyard, offsite transmission upgrades to the existing Pacific Gas and Electric transmission and distribution system, potentially a future Battery Energy Storage System (Phase I BESS) of up to 50-megawatt (MW), and other utility interconnections. Phase II would include a similar single-story, 35-foothigh data center building of 218,000 square feet (Building 2) that would utilize the aforementioned utilities that would be constructed in Phase I.

The project required preparation of an Environmental Impact Report (EIR) in compliance with the California Environmental Quality Act (CEQA) and the CEQA Guidelines. On June 6, 2022, the City Council awarded a contract to Circlepoint, Inc. (Consultant), in the amount of $175,000 ($158,988 plus a $16,012 contingency budget).

The contract was executed on June 27, 2022. On January 8, 2024, the City Council approved a first amendment to the agreement for an additional $32,252.05 to cover costs associated with a request by AWS to include additional tasks in the EIR.

ANALYSIS
The applicant for the Gilroy Data Center project, Amazon Web Services (AWS), made modifications to their project description that has resulted in out-of-scope work and additional costs associated with preparation of the Environmental Impact Report (EIR) by the consultant.
• Extensive coordination, meetings, phone calls and research: The changes to the project description require substantial research regarding relevant case law, technological specifications and considerations, and past investigations. The changes also require extensive coordination with AWS and City staff (e.g., Community Development and Fire Department) including at least 2 additional meetings and several phone calls, to resolve consistency and/or methodological issues.
• Additional DEIR drafts: The changes also require additional drafts of the DEIR be prepared and reviewed and commented on by City staff, as well as printing and delivering two hardcopies of the DEIR to the City for public access at the City Library and City Hall.

ALTERNATIVES

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Approval of a second Amendment to the Agreement with Circlepoint, Inc. for the Gilroy Data Center Project Environmental Impact Report in the amount of $36,757.25 for a total project cost of $244,009.30.

City of Gilroy City Council Page 3 of 3 November 4, 2024 1 7 The City Council may choose not to approve the amendment to the contract.

Circlepoint, Inc. would not be able to adequately complete the EIR for the Gilroy Data Center Project. Staff does not recommend this action.

FISCAL IMPACT/FUNDING SOURCE
Staff does not anticipate any net costs to the City as this is an applicant-paid project.

Attachments:

1. Draft Circlepoint Agreement for Services – Second Amendment

2. Circlepoint Agreement for Services – First Amendment, January 9, 2024

3. Circlepoint Agreement for Services, June 27, 2022

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SECOND AMENDMENT TO THE AGREEMENT FOR SERVICES BETWEEN THE CITY OF GILROY AND CIRCLEPOINT, INC.

WHEREAS, the City of Gilroy, a municipal corporation (“City”), and Circlepoint, Inc. entered into that certain agreement entitled Agreement for Services, effective on 6/27/2022, hereinafter referred to as “Original Agreement”; and
WHEREAS, on January 9, 2024, a First Amendment to the Original Agreement was executed between City and Circlepoint, Inc. to modify the scope of work and project cost to perform additional tasks associated with the Gilroy Data Center Environmental Impact Report (EIR); and WHEREAS, City and Circlepoint, Inc. have determined it is in their mutual interest to execute a second amendment to certain terms of the Original Agreement.

NOW, THEREFORE, FOR VALUABLE CONSIDERATION, THE PARTIES AGREE AS FOLLOWS:

1. Article 1. Term of the Agreement of the Original Agreement shall be amended to read as follows:
“This agreement will become effective on June 27, 2022 and will continue into effect through December 31, 2025 unless terminated in accordance with the provisions of Article 7 of this Agreement.”

2. Article 3, Section A (Specific Services) of the Original Agreement shall be amended to include Exhibit “B-2” (“Scope of Services”).

3. Article 4, Section A (Consideration) of the Original Agreement shall be amended to include Exhibit “D-2” (“Payment Schedule”).

4. This Amendment shall be effective retroactively on 10/21/2024.

5. Except as expressly modified herein, all of the provisions of the Original Agreement shall remain in full force and effect. In the case of any inconsistencies between the Original Agreement and this Amendment, the terms of this Amendment shall control.

6. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [Signatures on the next page.]

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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the dates set forth besides their signatures below.

CITY OF GILROY CIRCLEPOINT, INC.

By: By:
[signature] [signature]
Jimmy Forbis Audrey Zagazeta
[employee name] [name]
City Administrator President and CEO
[title/department] [title]
Date: Date:

Approved as to Form ATTEST:

City Attorney City Clerk

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EXHIBIT “B-2”

SCOPE OF SERVICES
Changes in the project description: Between February 2024 and July 2024, a number of changes to the project description were proposed by the applicant (“Amazon”), including:
• Removal of the use of recycled water and recycled water pipeline from the project description
• Change in the function of the Battery Energy Storage Systems from backup power supply to peak power management/power demand management
• Description of the BESS facilities changed to allow these facilities to be optional in nature • Relocation of Phase 1 BESS from the southwest building façade to the southeast building facade
• Inclusion of lithium-ion batteries as a transitory power source for the data racks • Removal of hydrogen as a potential energy source for the BESS facilities Each of the changes identified above require Circlepoint to edit the project description in the DEIR and update the entire EIR to ensure or remedy any consistency or methodological issues. Revisions to document graphics are also required.

Extensive coordination, meetings, phone calls and research: The changes to the project description require substantial research regarding relevant case law, technological specifications and considerations, and past investigations. The changes also require extensive coordination with AWS and City staff (e.g., Community Development and Fire Department) including at least 2 additional meetings and several phone calls, to resolve consistency and/or methodological issues.

Additional DEIR drafts: The changes also require additional drafts of the DEIR to be prepared and reviewed and commented on by city staff. Print and deliver two hardcopies of the DEIR to the City for public access at the City Library and City Hall.

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EXHIBIT “D-2”

PAYMENT SCHEDULE
Consultant will reallocate funds within the existing budget and receive $36,757.25 in additional funds, for a total contract amount of $244,009.30

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MDOLINGER\04706083

FIRST AMENDMENT TO THE AGREEMENT FOR SERVICES BETWEEN THE CITY OF GILROY AND CIRCLEPOINT, INC.

NOW, THEREFORE, FOR VALUABLE CONSIDERATION, THE PARTIES AGREE AS FOLLOWS:

1. Article 1. Term of the Agreement of the Original Agreement shall be amended to read as follows:
“This agreement will become effective on June 27, 2022 and will continue into effect through December 31, 2024 unless terminated in accordance with the provisions of Article 7 of this Agreement.”

2. Article 3, Section A (Specific Services) of the Original Agreement shall be amended to include Exhibit “B-1” (“Scope of Services”).

3. Article 4, Section A (Consideration) of the Original Agreement shall be amended to include Exhibit “D-1” (“Payment Schedule”).

4. Article 4, Section A (Consideration) of the Original Agreement shall be amended to read as follows:
“In consideration for the services performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit “D” (Payment Schedule”). In no event however shall the total compensation paid to CONTRACTOR exceed $207,252.05.” This Amendment shall be effectiveUHWURDFWLYHO\ on 12/1/2023. Except as expressly modified herein, all of the provisions of the Original Agreement shall remain in full force and effect. In the case of any inconsistencies between the Original Agreement and this Amendment, the terms of this Amendment shall control. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the dates set forth besides their signatures below.
[Signatures on the next page.]

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MDOLINGER\04706083
CITY OF GILROY CIRCLEPOINT, INC.

By: By:
[signature] [signature]
Jimmy Forbis Audrey Zagazeta
[employee name] [name]
City Administrator President and CEO
[title/department] [title]
Date: Date:

Approved as to Form ATTEST:

City Attorney City Clerk

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EXHIBIT “B-1”

SCOPE OF SERVICES
Attendance at Meetings in Exceedance of Original Assumptions:
x Consultant attendance at nine (9) additional meetings, ZLWKDGGLWLRQDOPHHWLQJ V

DQWLFLSDWHG
Public Scoping Meeting:
x Prepare an agenda and slides for the scoping meeting presentation.

Air Quality Impact Assessment (AQIA):
x Two additional reviews and coordination of the required revisions for each version of the AQIA (with the exception of Consultant’s initial review), which are necessary to ensure legal defensibility in the FaVe of a challenge to the EIR. 7UDQVSRUWDWLRQ$QDO\VLVMemorandum:
x Coordinate with Hexagon 7UDQVSRUWDWLRQ&RQVXOWDQWV,QFto walk the City through their peer review of the original 7UDQVSRUWDWLRQ assessment and to ultimately prepare a new assessment to support the EIR.
x Review and incorporate a new memorandum, prepared by Hexagon, into the EIR.

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EXHIBIT “D-1”

PAYMENT SCHEDULE
Consultant will reallocate funds within the existing budget and receive $32,252.05 in additional funds, for a total contract amount of $207,252.05.
.

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City of Gilroy
Agreement/Contract Tracking
Today’s Date: June 27, 2022 Your Name: Monica Sendejas
Contract
Type:

Services over $5k - Consultant Phone Number: 408-846-0266 Contract Effective Date:
(Date contract goes into effect)
6/27/2022
Contract Expiration Date: 12/30/2023
Contractor / Consultant Name:
(if an individual’s name, format as
last name, first name)
Circlepoint, Inc.

Contract Subject:
(no more than 100 characters)
Prepare an Environmental Impact Report (EIR) for the Gilroy Data Center Project (AWS)
Contract Amount:
(Total Amount of contract. If no
amount, leave blank)
$175,000.00
By submitting this form, I confirm
this information is complete:
➢ Date of Contract
➢ Contractor/Consultant name and complete address
➢ Terms of the agreement (start date, completion date or “until project completion”, cap of compensation to be paid)
➢ Scope of Services, Terms of Payment, Milestone Schedule and exhibit(s) attached
➢ Taxpayer ID or Social Security # and Contractors License # if applicable
➢ Contractor/Consultant signer’s name and title
➢ City Administrator or Department Head Name, City Clerk (Attest), City Attorney (Approved as to Form)
Routing Steps for Electronic Signature
Risk Manager
City Attorney Approval As to Form
City Administrator or Department Head
City Clerk Attestation
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AGREEMENT FOR SERVICES
(For contracts over $5,000 - CONSULTANT)
This AGREEMENT made this 27th day of June, 2022, between:

CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California
and CONSULTANT: Circlepoint, Inc., having a principal place of business at 200 Webster Street, Suite 200, Oakland, CA 94607.

ARTICLE 1. TERM OF AGREEMENT
This Agreement will become effective on June 27, 2022 and will continue in effect through December 30, 2023 unless terminated in accordance with the provisions of Article 7 of this Agreement.

Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall terminate this Agreement regardless of any other provision stated herein. ______ Initial
ARTICLE 2. INDEPENDENT CONTRACTOR STATUS
It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties acknowledge that CONSULTANT is not an employee for state or federal tax purposes.

CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY’S employees, including, without limitation, disability or unemployment insurance, workers’ compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONSULTANT shall retain the right to perform services for others during the term of this Agreement.

ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT
A. Specific Services
CONSULTANT agrees to: Perform the services as outlined in Exhibit “A” (“Specific Provisions”) and Exhibit “B” (“Scope of Services”), within the time periods described in Exhibit “C” (“Milestone Schedule”).

B. Method of Performing Services
CONSULTANT shall determine the method, details and means of performing the abovedescribed services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT’S services.

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C. Employment of Assistants
CONSULTANT may, at the CONSULTANT’S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT’S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding.

D. Place of Work
CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT’S services.

ARTICLE 4. COMPENSATION
A. Consideration
In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit “D” (“Payment Schedule”). In no event however shall the total compensation paid to CONSULTANT exceed $175,000 including a base budget of $158,988 and a contingency budget of $16,012.

B. Invoices
CONSULTANT shall submit invoices for all services rendered.

C. Payment
Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment will be made unless CONSULTANT has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit “A”, Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties.

D. Expenses
CONSULTANT shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT’S costs of doing business. CITY shall not be DocuSign Envelope ID: 14F9F2E1-0C78-4311-A1E3-40287DCA9EA0 6.3 p. 511 of 557
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responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” ARTICLE 5. OBLIGATIONS OF CONSULTANT
A. Tools and Instrumentalities
CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY.

B. Workers’ Compensation
CONSULTANT agrees to provide workers’ compensation insurance for CONSULTANT’S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys’ fees, arising out of any injury, disability, or death of any of CONSULTANT’S employees.

C. Indemnification of Liability, Duty to Defend

1. As to professional liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, to the extent arising or resulting directly or indirectly from any willful or negligent acts, errors or omissions of CONSULTANT or CONSULTANT’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property.

2. As to other liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, arising or resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property.

D. Insurance
In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, DocuSign Envelope ID: 14F9F2E1-0C78-4311-A1E3-40287DCA9EA0 6.3 p. 512 of 557
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including the loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements set forth below. Professional Liability Insurance written on a claims made basis (including without limitation the initial policy obtained and all subsequent policies purchased as renewals or replacements) must show the retroactive date, and the retroactive date must be before the earlier of the effective date of the contract or the beginning of the contract work. Claims made Professional Liability Insurance must be maintained, and written evidence of insurance must be provided, for at least five (5) years after the completion of the contract work. If claims made coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the earlier of the effective date of the contract or the beginning of the contract work, CONSULTANT must purchase so called “extended reporting” or “tail” coverage for a minimum of five (5) years after completion of work, which must also show a retroactive date that is before the earlier of the effective date of the contract or the beginning of the contract work. As a condition precedent to CITY’S obligations under this Agreement, CONSULTANT shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms.

E. Assignment
Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion.

F. State and Federal Taxes
As CONSULTANT is not CITY’S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that:
• CITY will not withhold FICA (Social Security) from CONSULTANT’S payments;
• CITY will not make state or federal unemployment insurance contributions on CONSULTANT’S behalf;
• CITY will not withhold state or federal income tax from payment to CONSULTANT;
• CITY will not make disability insurance contributions on behalf of CONSULTANT;
• CITY will not obtain workers’ compensation insurance on behalf of CONSULTANT.

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ARTICLE 6. OBLIGATIONS OF CITY
A. Cooperation of City
CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT’S duties under this Agreement.

B. Assignment
CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT’S duties or obligations under this Agreement.

ARTICLE 7. TERMINATION OF AGREEMENT
A. Sale of Consultant’s Business/ Death of Consultant.

CONSULTANT shall notify CITY of the proposed sale of CONSULTANT’s business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY’ receipt of such notice of sale.

If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT.

B. Termination by City for Default of Consultant
Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY’S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following:

1. CONSULTANT’S failure to professionally and/or timely perform any of the services contemplated by this Agreement.

2. CONSULTANT’S breach of any of its representations, warranties or covenants contained in this Agreement.

CONSULTANT shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C” which have been fully, competently and timely rendered by CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONSULTANT’S default in the performance of this Agreement or material breach by CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY DocuSign Envelope ID: 14F9F2E1-0C78-4311-A1E3-40287DCA9EA0 6.3 p. 514 of 557
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may have, CONSULTANT shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONSULTANT for the performance of that task pursuant to this Agreement.

C. Termination for Failure to Make Agreed-Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONSULTANT, at the CONSULTANT’S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY.

D. Transition after Termination
Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONSULTANT’s duties by any new consultant hired by the CITY to complete such services.

ARTICLE 8. GENERAL PROVISIONS
A. Amendment & Modification
No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto.

B. Americans with Disabilities Act of 1990
Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 (“the Act”) in its current form and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys’ fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either.

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C. Attorneys’ Fees
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.

D. Captions
The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation.

E. Compliance with Laws
The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor.

F. Conflict of Interest
CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement.

G. Entire Agreement
This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding.

No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY.

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H. Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California.

I. Notices
Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit “A”, Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing.

J. Partial Invalidity
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

K. Time of the Essence
All dates and times referred to in this Agreement are of the essence.

L. Waiver
CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement.

Executed at Gilroy, California, on the date and year first above written.

CONSULTANT: CITY:

CIRCLEPOINT, INC. CITY OF GILROY
By: By:

Name: Audrey Zagazeta Name: Jimmy Forbis
Title: President and CEO Title: City Administrator
Social Security or Taxpayer
Identification Number 94-3171809
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Approved as to Form ATTEST:

City Attorney City Clerk
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EXHIBIT “A”

SPECIFIC PROVISIONS
I. PROJECT MANAGER
CONSULTANT shall provide the services indicated on the attached Exhibit “B”, Scope of Services (“Services”). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONSULTANT agrees to assign Andrew Metzger, who will act in the capacity of Project Manager, and who will personally direct such Services.

Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement.

II. NOTICE TO PROCEED/COMPLETION OF SERVICE
A. NOTICE TO PROCEED
CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written “Notice to Proceed”, which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Cindy McCormick shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as provided in the Section V.H. (“Notices”) of this Exhibit “A”.

B. COMPLETION OF SERVICES
When CITY determines that CONSULTANT has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not completed all of such Services as required by this Agreement, CITY shall so inform CONSULTANT within this two (2) week period.

III. PROGRESS SCHEDULE
The schedule for performance and completion of the Services will be as set forth in the attached Exhibit “C”.

IV. PAYMENT OF FEES AND DIRECT EXPENSES
Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement.

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Direct expenses are charges and fees not included in Exhibit “B”. CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY.

CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses.

Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses.

V. OTHER PROVISIONS
A. STANDARD OF WORKMANSHIP
CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT’S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.

Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes.

B. RESPONSIBILITY OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONSULTANT shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY’S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONSULTANT’S negligent performance of any of the services furnished under this Agreement.

C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT
CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at the CITY’s offices within five (5) business days after CITY’s request.

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D. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONSULTANT and all other written and oral information developed or received by or for CONSULTANT and all other written and oral information submitted to CONSULTANT in connection with the performance of this Agreement shall be held confidential by CONSULTANT and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONSULTANT’S disclosure thereof) shall be deemed confidential. CONSULTANT shall not use CITY’S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY.

E. NO PLEDGING OF CITY’S CREDIT.

Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY.

F. OWNERSHIP OF MATERIAL.

All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONSULTANT may retain and use copies thereof subject to Section V.D of this Exhibit “A”.

CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONSULTANT shall not be responsible for, and City shall indemnify CONSULTANT from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT.

G. NO THIRD PARTY BENEFICIARY.

This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever.

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H. NOTICES.

Notices are to be sent as follows:

CITY: Cindy McCormick
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
CONSULTANT: Andrew Metzger
Circlepoint, Inc.
42 South First Street, Suite D
San Jose, CA 95113
I. FEDERAL FUNDING REQUIREMENTS.

If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply.

If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply.

1. DBE Program
CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City-adopted Disadvantaged Business Enterprise programs.

2. Cost Principles
Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items.

3. Covenant against Contingent Fees
The CONSULTANT warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONSULTANT, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

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EXHIBIT “B”

SCOPE OF SERVICES
Attached
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Exhibit B—Scope of Work
EXHIBIT B—SCOPE OF WORK
Thank you for this exciting opportunity to work with the City of Gilroy (City). We are pleased to provide this proposal, which outlines Circlepoint’s approach to preparing an Environmental Impact Report (EIR) for the Gilroy Data Center (project) proposed by Amazon Data Services (the Applicant).

PROJECT UNDERSTANDING
Circlepoint understands that the project will consist of the following components to be constructed in two phases:
• Two data center buildings and one security building totaling approximately 438,500 square feet; • Backup generating facilities to provide electricity to critical data center operations in the event of a loss of utility power;
• Two battery energy storage systems;
• A new substation/switchyard and a double circuit transmission upgrade; • A new recycled water pipeline;
• Ancillary utility infrastructure for connection to existing stormwater and potable water pipelines; • Security fencing;
• General Site Grading, Stormwater and Landscaping.

Phase I will be a traditional data center set up, requiring the use of diesel-powered backup generators. Circlepoint understands that the Applicant is committed to Tier-4 compliant backup generators, as required by the Bay Area Air Quality Management District (BAAQMD). Phase II will utilize an emerging technology to provide backup energy in the event of a power failure. Given that Phase I will have a maximum electrical demand of 49 MW and Phase II would leverage an alternative energy supply instead of diesel generators, the California Energy Commission (CEC) would not have jurisdiction over the project. Therefore, the project is not required to seek a Small Power Plant Exemption (SPPE) from CEC’s jurisdiction, and the project can follow the normal CEQA clearance process at the local level.

The project will require water for cooling when outside air temperatures exceed 83 degrees F. The data center will be designed to use recycled water provided by the City of Gilroy, once available, and a potable water connection will serve as a back-up source to the recycled water supply. Given the level of water demand required for the project, both potable and recycled, it is critical that the availability of water resources to meet project demand is adequately analyzed.

The project site’s former use for agricultural production indicates that vehicle miles traveled (VMT) generated from construction and operations of the project would be considered net new to the project site. The project is expected to include 25 employees to operate the data center and 37 employees to assemble the data equipment.

Circlepoint will use the peer-reviewed VMT analysis to carefully consider impacts.

APPROACH
process and environmental document as clear and straightforward as possible, so the general public and agencies understand the process, analysis, and issues being addressed.

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Exhibit B—Scope of Work
Based on the Request for Proposal (RFP) Letter provided by the City, Circlepoint understands that the City envisions preparing an Environmental Impact Report (EIR) that conservatively assesses the potential impacts of the project. While other less robust environmental document options (such as an Initial Study/Mitigated Negative Declaration) may also be feasible, Circlepoint agrees with the City’s preferred approach because an EIR will allow maximum public and agency involvement and be more legally defensible in the event of a challenge. Circlepoint anticipates that the project will face the greatest scrutiny surrounding impacts associated with water supply and operation, and noise introduced to the project site. Strong project management will be required to execute the preparation of a timely and meticulous document that will withstand legal and public scrutiny with regards to these topics. This requires experience and the right skills which Circlepoint possesses based on our extensive history working on data centers in Santa Clara, San José, and Los Angeles. opportunities for environmental streamlining. The EIR could address topics such as Mineral Resources, the CEQA Guidelines Section 15128.

Circlepoint understands the Applicant has submitted a detailed project description that includes a “mitigation incorporated into the project design” approach. This approach is common within the CEC’s SPPE process, but presents legal concerns from a local agency CEQA perspective (such as Lotus v. Department of Transportation (223 Cal. App. 4th 645)). Circlepoint will work closely with the City to review the applicable standard conditions of approval along with existing local, regional, state, and federal policies and best practices that could support the use of some Applicant-provided measures as “project features.” Circlepoint will apply our robust understanding impacts and discloses necessary mitigation.

QUALITY ASSURANCE/QUALITY CONTROL PROCESS
Circlepoint’s quality assurance/quality control (QA/QC) process ensures the continuing integrity and quality of all services and deliverables. Our QA/QC process includes senior review responsibilities for both the Project Manager and the Principal-in-Charge. The Project Manager directs and reviews project team work on deliverables products before a work product is delivered to a client or printer. The following table summarizes the management structure that Circlepoint uses to ensure the quality of every document we produce.

ROLE RESPONSIBILITIES
Principal-in-Charge • Overall quality control and quality assurance of all work products Project Manager • Primary client contact
• Oversees document preparation and coordination with technical subconsultants • Provides intermediate QA review and technical editing prior to PIC review Senior Associate • Secondary client contact, often acting in a Deputy Project Manager capacity • Coordinates information requests, delivery schedules, and day-to-day communication with technical consultant
• Lead reviewer and proofreader for most documents
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Exhibit B—Scope of Work

ROLE RESPONSIBILITIES
Associate / Assistant • Authorship of individual document sections • Research for document sections not covered by a technical report • Technical editing / formatting / production of all work products Coordinator / Graphics • Preparation of graphics and maps

WORK PLAN
TASK 1: KICKOFF AND MEETINGS
anticipates attendance at the following meetings:
•
• Twenty four (24) Bi-weekly Check In Meetings with City (Based on anticipated project schedule) •
TASK 2: SCOPING MEETING AND NOTICE OF PREPARATION
Circlepoint will prepare a Notice of Preparation (NOP) to inform the public and applicable stakeholders that environmental documentation is being prepared for the project. Consistent with Section 15082 of the CEQA Guidelines, the NOP materials shall include a description of the project, the location of the project, and probable impacts are anticipated, such as mineral and forestry resources. Following distribution of the NOP, Circlepoint will work closely with the City to facilitate a Public Scoping Meeting and provide recommendations in meeting response to the Public Scoping Meeting and the NOP and strategize with the City on incorporating these “known issues” into the EIR.

TASK 3: PROJECT DESCRIPTION
Circlepoint will prepare and submit a project description for City review and approval. Circlepoint will build upon the project description prepared by the Applicant and ensure it meets the requirements of CEQA Guidelines Section 15124. Circlepoint anticipates that the existing project description contains the majority of information needed for CEQA analysis. Circlepoint will revise the project description in response to one round of comments from the City. Circlepoint will utilize the following background materials (to be provided by the City/Applicant) to complete the project description:
• Preliminary geotechnical feasibility report
•
systems
• Commissioning test details (duration, number of generators) and maintenance testing plan •
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Exhibit B—Scope of Work
• Utility “will-serve” letters for electrical and water utilities and/or supply assessments if required by the City or utility provider
• Total anticipated power consumption (average, daily or annual) • Total daily water demand ; can be prorated from annual demand • Sanitary sewer capacity study, if required by City
• Arborist report, if required by City
• Construction assumptions, including duration, phasing, construction start and end months, and review of construction equipment list
Key Deliverable: Project Description
TASK 4: PROJECT MANAGEMENT
Circlepoint will provide ongoing project management throughout the environmental review process including maintain a project schedule and provide regular updates to the City. Circlepoint will also prepare monthly progress reports to accompany monthly invoices containing the following information: the beginning and ending dates of the billing period; budget summary including budget spent to date and budget remaining; and a Task Summary for each work task, containing the name of the person doing the work, the hours spent by each person, and a brief description of the work.

TASK 5: TECHNICAL STUDIES
Based on the background materials provided with the City’s RFP, Circlepoint understands that the Applicant has provided several background documents for consideration including aesthetics, biological resources, cultural resources, geology and soils, land use, mineral resources, public services, recreation, hazardous materials, prepared by the Applicant and/or City:
• Air Quality Impact Assessment
• Natural Resources Memorandum
• Archaeological Literature Search
• Geotechnical Desktop Review
• Geotechnical Considerations Report
• Phase I Environmental Site Assessment
• Phase II Environmental Site Assessment
• Environmental Noise & Vibration Assessment
• Environmental Noise & Vibration Assessment Addendum
• Transportation Attachments, VMT Analysis, including Peer Review of VMT Assessment • California Energy Commission Tribal Outreach Letters
• City of Gilroy Assessment of Water Supply
• Arborist Report
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Exhibit B—Scope of Work
Circlepoint will conduct a gap analysis to ensure each of these technical studies provides the information necessary to support and complete the EIR per CEQA guidelines. If additional technical analysis is required, Circlepoint will coordinate with the City to strategize on the best course of action. Additional studies would require an amendment to this scope and fee. We assume all reports listed above will be provided to Circlepoint in a format acceptable for use in supporting a CEQA document and can be publicly circulated.

TASK 6: DRAFT EIR
Circlepoint will prepare a Draft EIR consistent with CEQA Guidelines Article 9. The Draft EIR will meet all City standards for content and formatting.

Task 6.1: Administrative Draft EIR
The background materials provided with the City’s RFP Letter included CEQA-related documents which assess and analyze project impacts for a number of resources. Circlepoint will rely upon the analysis already prepared to the prepare the setting, impacts, and mitigation discussions for each environmental topic area set forth in Appendix G of the CEQA Guidelines. Circlepoint will prepare a summary of existing conditions, pertinent regulations, and a description of the regional setting, placing special emphasis on any rare or unique environmental resources in the project area. Circlepoint will review and reference relevant policies and regulations from the City’s General Plan and Zoning Code, and other documents required for the analysis as applicable. The EIR will also include an analysis of alternatives to the project, an assessment of cumulative impacts associated with the project, and a description of comments received during the scoping period. Circlepoint assumes that up to three alternatives will be evaluated in the EIR, including (for example) a reduced development alternative, a reduced backup electric generation alternative, and/or a backup electric generation technology alternative. For the cumulative impacts analysis, Circlepoint will use the City’s General Plan as a guide for reasonably foreseeable projects in the surrounding area.

Circlepoint will prepare a draft mitigation monitoring and reporting program (MMRP) to be submitted with the Administrative Draft EIR for City review. The draft MMRP will develop and present feasible mitigation for monitoring each mitigation measure, and identify monitoring triggers and reporting frequency for each measure.

The Administrative Draft and MMRP will be provided in electronic formats to the City.

Key Deliverables: Administrative Draft EIR, draft MMRP
Task 6.2: Screencheck Draft EIR
Circlepoint will then provide clean, compiled PDF and MS Word versions of the screencheck draft EIR to verify that Key Deliverables: Second Administrative Draft EIR, Screencheck Draft EIR.

Task 6.3: Public Draft EIR
comments and submit web-ready versions of the EIR and all associated appendices. Hardcopies of the EIR can be provided on a time and materials basis, if requested by the City. Circlepoint will also prepare the combined Notice of Availability/Release and a Notice of Completion in accordance with Section 15087 of the CEQA Guidelines, and provide advice as needed to the City regarding distribution of the Draft EIR pursuant to CEQA and City review procedures. Consistent with Section 15087, notice availability of the Draft EIR will be published DocuSign Envelope ID: 14F9F2E1-0C78-4311-A1E3-40287DCA9EA0 6.3 p. 528 of 557
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Exhibit B—Scope of Work
project is to be located, and mailed to the owners and occupants of property contiguous to the parcel or parcels on which the project is located.

The Draft EIR will be circulated for a minimum of 45 days. While public hearings are not required as an element of the CEQA process, they are encouraged to facilitate the public commenting process and address known issues of the project. Circlepoint recommends that the City hold a public hearing during the circulation period given the anticipated public controversy surrounding the project. This scope includes a public hearing as an optional task.

OPTIONAL TASK: Public Hearing
Key Deliverables: Draft EIR, NOA, NOC
TASK 7: FINAL EIR
Task 7.1: Response to Public Comments
Circlepoint will prepare written responses to comments on the Draft EIR following the public review period.

Circlepoint assumes the City will provide copies of all written comments. Should the City decide to advance with the public hearing, which is included in this scope as an optional task, Circlepoint will assist the City in recording written and verbal comments at the hearing. Circlepoint will compile all comments with alpha-numeric codings close of the comment period to discuss the best approach, which may include the use of master responses to facilitate the response to similar or repeated comments. Comment responses will be incorporated to the Final EIR for the City’s review.

Circlepoint hours listed in the proposed budget for responses to comments are an allowance. If an unusually large volume of comments are received (over 15 distinct comment letters), Circlepoint will confer with the City to determine an appropriate path forward. The scope and budget also assumes responses do not require substantial additional research, analysis, or meetings with commenters.

Task 7.2: Final EIR
Circlepoint will prepare a Final EIR which includes responses to all public comments received during the circulation period. Consistent with Section 15132 of the CEQA Guidelines, the Final EIR will comprise the following elements:
• Project Description
• A Summary of the Environmental Process
•
• Responses to Comments, including a list of persons, organizations, and public agencies commenting on the draft EIR; the comments received, and the City’s responses to each comment • An Erratum to address any necessary changes to the Draft EIR that may result from public comments • Appendices (as needed)
Based on up to two (2) sets of consolidated comments from the City, Circlepoint will revise the responses to Key Deliverables: Response to Public Comments, Final EIR.

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Exhibit B—Scope of Work

ASSUMPTIONS
The following assumptions apply to this project:

Circlepoint anticipates responding to three (3) rounds of revisions from the City on the EIR including two (2) administrative drafts and one (1) screencheck draft prior to publication.

Comments on draft documents will be provided to Circlepoint electronically using Microsoft Word’s Track All submittals will be conducted electronically (PDF and Microsoft Word versions). Electronic versions will be provided in both word and pdf format. Additional hard copies and electronic versions can be provided upon request by the City.

Circlepoint assumes that all edits and revisions between the Draft and Final EIR would be minor in nature, the Draft EIR may need to be recirculated pursuant to CEQA Guidelines Section 15088.5. distribution for the Public Scoping Meeting. Should the City request additional support in this task, this can be addressed in coordination with the City and the preparation of a scope addendum.

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EXHIBIT “C”

MILESTONE SCHEDULE
Attached
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Exhibit C—Milestone Schedule
EXHIBIT C—MILESTONE SCHEDULE
The Circlepoint team will initiate work on this project upon contract execution. Background research, site visits, and reporting will commence immediately. The completion of the EIR process typically takes 10 to 12 months, depending on the City’s review time.

MILESTONE ESTIMATED COMPLETION DATE
Mid-to-Late June, 2022
Receipt of Requested Data Early July, 2022
Submittal of Draft Project Description Late July, 2022
City Comments on Draft Project Description Mid-to-Late August, 2022 Finalization of Project Description August/September, 2022 Technical Reports Gap Analysis September, 2022
NOP Preparation September/October, 2022
City Reviews NOP materials Early-To-Mid October, 2022
Scoping Meeting Early November, 2022
Compilation of NOP Comments to be included in EIR Late November, 2022 Submittal of Administrative Draft EIR December, 2022
City Provides Comments on Administrative Draft EIR January 2023 Submittal of Second Administrative Draft EIR January/February, 2023 City Provides Comments on Second Administrative Draft EIR (3 week review)
February, 2023
Submittal of Screencheck Draft EIR March, 2023
Public Circulation of Draft EIR March, 2023
Public Meetings (Optional) April, 2023
Meeting with City to discuss Public Comments received May, 2023 Submittal of First Draft of Final EIR May, 2023
City Review Provides Comments on First Draft of Final EIR (3 week review)
June, 2023
Submittal of Final EIR June/July, 2023
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EXHIBIT “D”

PAYMENT SCHEDULE
Attached
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Exhibit D—Payment Schedule
EXHIBIT D—PAYMENT SCHEDULE
Circlepoint would complete the tasks described above for a not-to-exceed fee of $158,988.

M5528 Gilroy AWS Data Center
Tasks Principal
Comms
Sr. PM PM Sr. Assoc Associate
Assistant /
Coordinator
Sr. Web/
Graphics
Rates 252 $ 197 $ 173 $ 138 $ 118 $ 103 $ 144 $
Task 1 Kickoff, Project Description, and other Meetings

1.1 Kick Off Meeting 1 4 - 3 - - 1,244.00 8 $

1.2 Bi-Weekly Check In Meetings - 24 - 24 - - - 7,464.00 48 $

1.3 Planning Comissions/City Council Meetings 4 27 - 6 - - 6,570.00 37 $ Subtotal Task 1 Kickoff, Project Description, a - 5 55 33 - - 93 - 15,278.00 $ Task 2 Public Scoping and NOP

2.1 Public Scoping Meeting 1 2 4 2 8 2 2,608.00 19 $

2.2 NOP materials 1 7 6 8 - 2,912.00 20 $
Subtotal Task 2 Public Scoping and NOP 1 - 6 7 8 - - 39 5,520.00 $ Task 3 Project Description

3.1 Project Description 2 10 - 8 8 6 - 4,878.00 34 $
Subtotal Task 3 Project Description 2 - 10 8 8 6 - 34 4,878.00 $ Task 4 Project Management

4.1 Project Management and Coordination 8 18 72 18 - - - 20,540.00 116 $ Subtotal Task 4 Project Management 8 18 72 18 - - - 116 20,540.00 $ Task 5 Technical Studies

5.1 Gap Analysis 4 - 20 18 15 - 8,580.00 57 $
Subtotal Task 5 Technical Studies 4 - 20 18 15 - - 57 8,580.00 $ Task 6 Admin Draft EIR

6.1 Admin Draft EIR 10 - 40 85 92 100 - 42,270.00 327 $

6.2 Screencheck Draft EIR 4 - 20 30 40 50 - 18,500.00 144 $

6.3 Public Draft EIR 4 - 20 28 38 38 - 16,440.00 126 $
Subtotal Task 6 Admin Draft EIR 18 - 80 142 170 188 - 597 77,210.00 $ Task 7 Final EIR

7.1 Response to Public Comments and Final EIR 2 - 20 20 22 22 - 11,386.00 85 $

7.2 Final EIR 4 10 12 12 14 7,126.00 52 $
Subtotal Task 7 Final EIR 2 - 20 20 22 22 - 137 18,512.00 $ Labor Subtotal 37 18 257 240 215 216 - 1,072 $ 150,518.00 Labor Contingency $ -
Total Labor $ 150,518.00
ODCs
Travel $ 500.00
Scoping Meeting (Printing, Materials, Misc) $ 1,000.00
Notification Mailer (NOA) $ 5,000.00
Display Ad Placement $ 1,200.00
$ -
$ -
$ -
$ -
Subtotal ODCs $ 7,700.00

10.0% Mark-Up on ODCs $ 770.00
Total ODCs $ 8,470.00
TOTAL $ 158,988.00
Assumptions
Rates are effective through December 31, 2022 and are subject to annual escalation Please see scope of work for detailed assumptions
Total
Hours
Total
Dollars
Circlepoint Budget
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City of Gilroy

STAFF REPORT
Agenda Item Title: Claim of Jesus Diaz Chavez (The City Administrator recommends a "yes" vote under the Consent
Calendar shall constitute denial of the claim)
Meeting Date: November 4, 2024
From: Jimmy Forbis, City Administrator
Department: Administrative Services
Submitted By: LeeAnn McPhillips, Administrative Services and Human Resources Director / Risk Manager
Prepared By: LeeAnn McPhillips, Administrative Services and Human Resources Director / Risk Manager
STRATEGIC PLAN GOALS Not Applicable

RECOMMENDATION
Based on the recommendation from Municipal Pooling Authority (MPA) and/or legal counsel, this claim is recommended for rejection.

EXECUTIVE SUMMARY
Based on the recommendation from Municipal Pooling Authority (MPA) and/or legal counsel, the following claim is submitted to the City Council for rejection at the November 4, 2024 meeting:
• Claim of Jesus Diaz Chavez
Attachments:

1. Claim of Jesus Diaz Chavez

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City of Gilroy

STAFF REPORT
Agenda Item Title: Claim of Roberto Patricio Justor (The City Administrator recommends a "yes" vote under the
Consent Calendar shall constitute denial of the claim)
Meeting Date: November 4, 2024
From: Jimmy Forbis, City Administrator
Department: Administrative Services
Submitted By: LeeAnn McPhillips, Administrative Services and Human Resources Director / Risk Manager
Prepared By: LeeAnn McPhillips, Administrative Services and Human Resources Director / Risk Manager
STRATEGIC PLAN GOALS Not Applicable

RECOMMENDATION
Based on the recommendation from Municipal Pooling Authority (MPA) and/or legal counsel, this claim is recommended for rejection.

1. Claim of Roberto Patricio Justor

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City of Gilroy

STAFF REPORT
Agenda Item Title: Approval of a Notice of Acceptance of Completion for the FY23 Citywide Pavement Rehabilitation Project
No. 23-PW-278 and Approval of a Final Contract with
Teichert Construction in the Amount of $5,977,011.86
Meeting Date: November 4, 2024
From: Jimmy Forbis, City Administrator
Department: Public Works
Submitted By: Daniel Padilla, City Engineer
Prepared By: Julie Oates, Engineer II
STRATEGIC PLAN GOALS Maintain and Improve City Infrastructure

RECOMMENDATION
a) Approve a Notice of Acceptance of Completion for the FY23 Citywide Pavement Rehabilitation Project No. 23-PW-278.
b) Approve a final contract in the amount of $5,977,011.86 with Teichert Construction for the FY23 Citywide Pavement Rehabilitation Project No. 23-PW-278.

EXECUTIVE SUMMARY
The Public Works Department has completed construction of the FY23 Citywide Pavement Rehabilitation Project (Project) and has reviewed and approved all Project documentation. The Project scope of work included preventive maintenance and rehabilitation of 119 street segments, installation of 57 ADA-compliant curb ramps, pavement striping and markings, and associated work. The street segments were selected based on the City’s Pavement Management Program, StreetSaver, which evaluates and prioritizes maintenance of the City’s overall road network. Staff also received feedback from Public Works street maintenance crews.

Staff recommends the City Council approve the Notice of Acceptance of Completion

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Approval of a Notice of Acceptance of Completion for the FY23 Citywide Pavement Rehabilitation Project No. 23-PW-278 and Approval of a Final Contract with Teichert Construction in the Amount of $5,977,011.86
City of Gilroy City Council Page 2 of 3 November 4, 2024 1 7 and approve a final contract in the amount of $5,977,011.86 with Teichert Construction for the FY23 Citywide Pavement Rehabilitation Project No. 23-PW-278.

BACKGROUND
The City of Gilroy Fiscal Year 2024 to Fiscal Year 2028 Capital Improvement Program (FY24-FY28 CIP) was adopted by the City Council on June 5, 2023. The FY23 Citywide Pavement Rehabilitation Project is included in the FY24-FY28 CIP as Project #800060.

On May 1, 2023, the City Council awarded a construction contract for the Project to Teichert Construction in the amount of $6,080,374.35 with a project contingency of $608,037.65 (10%) for a total construction allocation of $6,688,413.00 and authorized the City Administrator to execute the contract and associated documents.

ANALYSIS
The Project scope of work included preventive maintenance and rehabilitation of 119 street segments, installation of 57 ADA-compliant curb ramps, pavement striping and markings, and associated work. The Project’s total construction change orders resulted in a net decrease of $103,362.49 to the contract amount.

The original construction schedule for the Project was May 31, 2023 to October 5, 2023.

The contractor reported the work as complete in September 2023. However, based on the City’s inspection of the slurry seal work, the contractor was required to perform repairs on 39 street segments. Repair work began in November 2023. The repair work was subsequently suspended due to inclement weather conditions. Repair work resumed in July 2024 and the City deemed the Project Substantially Complete on August 1, 2024. Project documentation has been completed and all punch list items have been addressed by the contractor.

Staff recommends the City Council approve the Notice of Acceptance of Completion and the final contract in the amount of $5,977,011.86 with Teichert Construction for the FY23 Citywide Pavement Rehabilitation Project No. 23-PW-278.

FISCAL IMPACT/FUNDING SOURCE
The Project’s final construction cost was $5,977,011.86. The Project was under budget by $103,362.49. In addition, the $608,037.65 in contingency funds that were allocated to the Project were not used. It is recommended that the savings from this FY23 project be allocated to expand the City’s FY25 Citywide Pavement Rehabilitation Project, which is currently under development. Staff will bring forward the recommendation as part of the comprehensive mid-cycle budget adjustments report at the November 18 City Council meeting. The Project’s funding sources are summarized below.

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Approval of a Notice of Acceptance of Completion for the FY23 Citywide Pavement Rehabilitation Project No. 23-PW-278 and Approval of a Final Contract with Teichert Construction in the Amount of $5,977,011.86
City of Gilroy City Council Page 3 of 3 November 4, 2024 1 7 Funding Source Amount
Gas Taxes (205) $2,887,660.00
Road Funds SB1 (210) $1,300,752.00
Measure B (212) $900,000.00
General Fund (100) $888,599.86
Total $5,977,011.86
Attachments:

1. 23-PW-278 NOC

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City of Gilroy

STAFF REPORT
Agenda Item Title: Zoning Ordinance Update Progress Report Meeting Date: November 4, 2024
From: Jimmy Forbis, City Administrator
Department: Community Development
Submitted By: Sharon Goei, Community Development Director Prepared By: Cindy McCormick, Planning Manager
STRATEGIC PLAN GOALS Not Applicable

RECOMMENDATION
Receive the staff report and provide feedback.

EXECUTIVE SUMMARY
The Gilroy Planning Division of the Community Development Department is drafting amendments for a comprehensive update to Gilroy City Code, Chapter 30 (Zoning Ordinance). The City has traditionally completed a comprehensive code update following adoption of a new General Plan. For example, in November 2003 the City Council adopted a comprehensive update to the entire Zoning Ordinance following adoption of the 2020 General Plan in June 2002. In addition to minor amendments following the 2003 update, a major update was completed in 2013, followed by minor amendments between 2013 and 2024, to primarily address state legislation that affected City regulations (e.g., Accessory Dwelling Units).

The Gilroy 2040 General Plan was adopted in November 2020 and a comprehensive Zoning Ordinance update is being proposed.

Given the length and complexity of the Zoning Ordinance, the draft will be developed and presented to the general public, the Planning Commission, and the City Council, over a series of public meetings. It is anticipated that the public review process will take approximately nine months, followed by a recommendation by the Planning Commission in late summer / early fall 2025. During this time, staff will also be hosting

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Zoning Ordinance Update Progress Report
City of Gilroy City Council Page 2 of 3 November 4, 2024 1 7 community meetings for public feedback on the more substantive sections of the Zoning Ordinance, including, for example, downtown uses and development standards. Staff will incorporate feedback from the Planning Commission and the public into a comprehensive draft that is anticipated to be presented to the City Council during the last quarter of the 2025 calendar year. In the meantime, staff will provide the City Council with periodic updates on the Zoning Ordinance update progress, including links to the draft sections of code that the Planning Commission has reviewed.

BACKGROUND
On September 5, 2024, Planning staff provided an introduction of the update to the public and the Planning Commission. To date, the Planning Commission has reviewed the following preliminary drafts: Enactment and Administration, Non-Conforming Uses and Structures, and Application Procedures. The following drafts will be reviewed in the next few meetings: Architectural and Site Review, Conditional Use Permits, Minor Use Permits, Temporary Use Permits, and Variances and Minor Deviation Permits. Because the Zoning Ordinance will have a completely new format, it is not possible to provide track changes. However, staff is providing a summary of the changes during each Planning Commission meeting (e.g., Section 30.1.030 [Application of the Zoning Ordinance] can now be found in Section 30.10.050 [Applicability]). When new provisions or substantive changes are proposed, these will be noted in the summary document for discussion at the public meeting.

ANALYSIS
While the General Plan sets forth a wide-ranging and long-term vision for the City, the Zoning Ordinance is the primary tool used to implement General Plan goals and policies, through guidance and regulation of land use development. The current Zoning Ordinance lacks regulations for new General Plan land uses including the new City Gateway District, Industrial Park, Employment Center and Mixed-Use districts. The update is also intended to implement community goals identified in the General Plan, including but not limited to ensuring orderly development and land use compatibility, housing needs, employment needs, recreational opportunities, commercial growth, and downtown revitalization.

The update will also address noise impacting residential properties and drive-throughs near residential areas.

In addition to addressing new land uses and policies adopted under the new General Plan, the update is intended to be responsive to needs identified by the Planning Division in their daily interactions with residents and businesses. For example, new provisions in the Temporary Use Permit Division will allow existing businesses to expand while applying for planning and building permits. The City’s current regulations generally restrict temporary uses to 30 or fewer days.

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Zoning Ordinance Update Progress Report
City of Gilroy City Council Page 3 of 3 November 4, 2024 1 7 The update will also include a new format intended to make the Zoning Ordinance more user-friendly by adding subtitles for easy navigation, clarifying or revising language to limit misinterpretation and adding figures to better depict standards. The new Zoning Ordinance will also provide more transparency to the public regarding how City staff and decision makers process and make decisions on development applications.

PUBLIC OUTREACH
On September 12, 2024, the City advertised the zoning update in the Gilroy Dispatch. A dedicated website https://www.cityofgilroy.org/1004/Zoning-Code-Update has also been created and will be updated as new preliminary drafts are developed and reviewed by the Planning Commission. Staff also intends to conduct more extensive outreach to the business community, residential stakeholders, and other stakeholders who must comply with the Zoning Code (e.g., development standards and downtown uses). These community meetings will most likely be virtual to supplement the in-person meetings being held by the Planning Commission.

NEXT STEPS
In addition to the planning permit drafts linked in the background section, the Planning Commission will review the remaining planning permit drafts, including but not limited to Historic Resource Permits and Planned Development Permits. Future meetings will introduce preliminary drafts of the more substantive sections of the Zoning Ordinance, including definitions; zoning districts, allowed uses, and development standards; standards applicable to all zones (e.g., noise standards); and standards for specific land uses (e.g., drive-through facilities). Once all preliminary drafts have been reviewed and revised pursuant to Planning Commission direction, a comprehensive draft of the entire ordinance will be brought back to the Commission for a recommendation to the City Council. In the meantime, staff will provide the City Council with periodic updates on the Zoning Ordinance update progress.

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Gilroy City CouncilNovember 4, 2024

Gilroy City Council
November 4, 2024