CONSULTANT shall deliver to CITY the deliverables defined in Exhibit “A.”
3. COMPENSATION AND PAYMENT
(a) Maximum and Rate . The total compensation payable to CONSULTANT by CITY for the services under this AGREEMENT SHALL NOT EXCEED the sum of $197,313 (herein "not to exceed amount"), and shall be earned as the work progresses on the following basis:
Hourly at the hourly rates and with reimbursement to CONSULTANT for those expenses set forth in CONSULTANT's Schedule of Fees marked Exhibit "B," attached and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon CONSULTANT until December 31, 2024, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice of any rate increase request), provided the not to exceed amount is the total compensation due CONSULTANT for all work described under this AGREEMENT.
(b) Payment . CONSULTANT shall provide CITY with written verification of the actual compensation earned, which written verification shall be in a form satisfactory to CITY's Project Manager, as described in Section 5.
Invoices shall be made no more frequently than on a monthly basis, and describe the work performed (including a list of hours worked by personnel classification).
All payments shall be made within 30 days after CITY’s approval of the invoice.
4. EXTRA SERVICES
CITY shall pay CONSULTANT for those CITY authorized extra services, not reasonably included within the services described in Section 2, as mutually agreed to writing in advance of the incurrence of extra services by CONSULTANT.
Unless CITY and CONSULTANT have agreed in writing before the performance of extra services, no liability and no right to claim compensation for such extra services or expenses shall exist. The applicable hourly rates for extra services shall be at the hourly rates set forth in Exhibit B, if one is included as part of this agreement. Any compensation for extra services shall be part of the total compensation and shall not increase the not to exceed amount identified in Section
3. 5. CITY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by CONSULTANT shall be accomplished under the general direction of, and coordinate with, CITY's "Project Manager", as that staff person is designated by CITY from time to time, and who presently is
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 793
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Gerald Comati. Project Manager shall have the authority to act on behalf of the CITY in administering this AGREEMENT but shall not be authorized to extend the term of the AGREEMENT or increase the not to exceed amount.
6. TERM, PROGRESS AND COMPLETION
The term of this AGREEMENT is from the date first written above to December 31, 2024, unless term of this AGREEMENT is extended, or the AGREEMENT is terminated as provided for herein.
CONSULTANT shall not commence work on the services to be performed until (i) CONSULTANT furnishes proof of insurance as required by Section 10 below, and (ii) CITY gives written authorization to proceed with the work provided by CITY's Project Manager.
7. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports and other documentation (other than CONSULTANT's drafts, notes and internal memorandum), including duplication of same prepared by CONSULTANT in the performance of these services, are the property of CITY. CITY shall be entitled to immediate possession of the same upon completion of the work under this AGREEMENT, or at any earlier or later time when requested by CITY. CITY agrees to hold CONSULTANT harmless from all damages, claims, expenses, and losses arising out of any reuse of the plans and specifications for purposes other than those described in this AGREEMENT, unless written authorization of CONSULTANT is first obtained.
8. PERSONAL SERVICES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for professional services which are personal to CITY.
Chris Julian is deemed to be specially experienced and is a key member of CONSULTANT's firm, and shall be directly involved in the performance of this work. This key person shall communicate with, and periodically report to, CITY on the progress of the work. Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this AGREEMENT.
This AGREEMENT may not be assigned or subcontracted without the City Manager’s prior written consent.
Subconsultants/Subcontractors:
x Laura M. Bridley AICP, Laura Bridley, 805-896-2153
9. HOLD HARMLESS AND INDEMNITY
(a) Hold Harmless for CONSULTANT's Damages. CONSULTANT holds CITY, its elected officials, officers, agents, and employees, harmless from
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 794
City of Goleta
Public Works Department – Rincon Consultants, Inc.
all of CONSULTANT's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to CONSULTANT, to CONSULTANT's employees, to CONSULTANT’s contractors or subcontractors, or to the owners of CONSULTANT's firm, which damages, losses, injuries or liability occur during the work required under this AGREEMENT, or occur while CONSULTANT is on CITY property, or which are connected, directly or indirectly, with CONSULTANT's performance of any activity or work required under this AGREEMENT. (b) Defense and Indemnity of Third Party Claims/Liability.
CONSULTANT shall investigate, defend, and indemnify CITY, its elected officials, officers, agents, and employees, from any claims, lawsuits, demands, judgments, and all liability including, but not limited to, monetary or property damage, lost profit, personal injury, wrongful death, general liability, automobile, infringement of copyright/patent/trademark, or professional errors and omissions arising out of, directly or indirectly, an error, negligence, or omission of CONSULTANT or any of CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subcontractors, or the willful misconduct of CONSULTANT or any of CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subcontractors, in performing the services described in, or normally associated with, this type of contracted work. The duty to defend shall include any suits or actions concerning any activity, product or work required under this AGREEMENT, and also include the payment of all court costs, attorney fees, expert witness costs, investigation costs, claims adjusting costs and any other costs required for and related thereto.
(c) No Waiver. CITY does not waive, nor shall be deemed to have waived, any indemnity, defense or hold harmless rights under this section because of the acceptance by CITY, or the deposit with CITY, of any insurance certificates or policies described in Section 10.
10. INSURANCE
CONSULTANT shall, at CONSULTANT's sole cost and expense, provide insurance as described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating of A- or better, Class VII or better, or as otherwise approved by CITY.
Insurance shall include the following (or broader) coverage:
a) Insurance Services Office Commercial Liability coverage “occurrence” form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000 general aggregate.
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 795
City of Goleta
Public Works Department – Rincon Consultants, Inc.
b) Insurance Services Office form number CA 00 01 or equivalent covering Automobile Liability, including hired and non-owned automobile liability with a minimum limit of $1,000,000 per accident. If the Service Provider owns no vehicles, this requirement may be satisfied by a non-owned and hired auto endorsement to Service Provider’s commercial general liability policy.
c) Workers’ Compensation insurance complying with California worker’s compensation laws, including statutory limits for workers’ compensation and an Employer’s Liability limit of $1,000,000 per accident or disease.
d) Professional liability insurance that covers the services to be performed in connection with this agreement, in the minimum amount of $1,000,000 per claim.
Liability insurance policies required to be provided by CONSULTANT hereunder shall contain or be endorsed to contain the following provisions:
a) Except for professional liability insurance, CITY, its employees, officials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the work performed or related to the contract. Additional insured status under the general liability requirement shall be provided on Insurance Services Office Form CG 20 10, with an edition date prior to 2004, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37, or its equivalent.
b) General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability. Coverage will not be limited to CITY’s vicarious liability.
c) Professional liability insurance policies inception date, continuity date, or retroactive date must be before the effective date of this agreement.
CONSULTANT agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
d) Except for professional liability insurance, liability coverage shall be primary and non-contributing with any insurance maintained by CITY.
e) Evidence of coverage (including the workers’ compensation and employer’s liability policies) shall provide that coverage shall not be
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 796
City of Goleta
Public Works Department – Rincon Consultants, Inc.
suspended, voided, canceled or reduced in coverage or in limits except after 30 days’ prior written notice has been given to CITY. Such provision shall not include any limitation of liability of the insurer for failure to provide such notice.
f) No liability insurance coverage provided to comply with this AGREEMENT shall prohibit CONSULTANT, or CONSULTANT’s
employees, or agents, from waiving the right of recovery prior to a loss.
CONSULTANT waives its right of recovery against CITY.
g) CONSULTANT agrees to deposit with CITY within fifteen days of Notice to Proceed of the Contract certificates of insurance and required endorsements.
h) There shall be no recourse against CITY for payment of premiums or other amounts with respect to the insurance required to be provided by CONSULTANT hereunder. Any failure, actual or alleged, on the part of CITY to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of CITY. CITY has no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this AGREEMENT does not comply with these requirements or is 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.
i) CONSULTANT agrees to provide immediate notice to CITY of any claim or loss against CONSULTANT arising out of the work performed under this AGREEMENT. CITY assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve CITY.
11. RELATIONSHIP OF CONSULTANT TO CITY
The relationship of the CONSULTANT to CITY shall be that of an independent contractor and that in no event shall CONSULTANT be considered an officer, agent, servant or employee of CITY. CONSULTANT shall be solely responsible for any workers compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the described work.
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 797
City of Goleta
Public Works Department – Rincon Consultants, Inc.
12. CORRECTIONS
In addition to the above indemnification obligations, CONSULTANT shall correct, at its expense, all errors in the work that may be disclosed during CITY's review of CONSULTANT's report or plans. Should CONSULTANT fail to make such correction in a reasonably timely manner, such correction shall be made by CITY, and the cost thereof shall be charged to CONSULTANT or withheld from any funds due to CONSULTANT hereunder.
13. TERMINATION BY CITY
CITY, by notifying CONSULTANT in writing, may upon 10 calendar days notice, terminate without cause any portion or all of the services agreed to be performed under this AGREEMENT. If termination is for cause, no notice period need be given. In the event of termination, CONSULTANT shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by CITY to CONSULTANT within 30 days following submission of a final statement by CONSULTANT unless termination is for cause. In such event, CONSULTANT shall be compensated only to the extent required by law.
14. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by CONSULTANT of the final payment made under this AGREEMENT shall operate as and be a release of CITY from all claims and liabilities for compensation to CONSULTANT for anything done, furnished, or relating to CONSULTANT'S work or services. Acceptance of payment shall be any negotiation of CITY's check or the failure to make a written extra compensation claim within 10 calendar days of the receipt of that check. However, approval or payment by CITY shall not constitute, nor be deemed, a release of the responsibility and liability of CONSULTANT, its employees, subcontractors, agents and CONSULTANTs for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by CITY for any defect or error in the work prepared by CONSULTANT, its employees, subcontractors, agents and consultants.
15. AUDIT OF RECORDS
At any time during normal business hours and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with respect to all matters covered by this AGREEMENT and will permit CITY to audit, examine and/or reproduce such records. CONSULTANT will retain such financial records, time sheets, work
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City of Goleta
Public Works Department – Rincon Consultants, Inc.
progress reports, invoices, bills and project records for at least two years after termination or final payment under this AGREEMENT.
16. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this AGREEMENT by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this AGREEMENT, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.
17. CONFLICT OF INTEREST
CONSULTANT is unaware of any CITY employee or official that has a financial interest in CONSULTANT'S business. During the term of this AGREEMENT and/or as a result of being awarded this AGREEMENT, CONSULTANT shall not offer, encourage or accept any financial interest in CONSULTANT'S business by any CITY employee or official.
18. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this AGREEMENT shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.
19. MITIGATION OF DAMAGES
In all situations arising out of this AGREEMENT, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
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City of Goleta
Public Works Department – Rincon Consultants, Inc.
20. GOVERNING LAW
This AGREEMENT, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.
Should litigation occur, venue shall be in Superior Court of Santa Barbara County.
21. NONDISCRIMINATION
CONSULTANT shall not discriminate on the basis of race, color, gender, gender identity/expression, pregnancy, sexual orientation, disability, marital status, or any other characteristic protected under applicable federal or state law.
22. TAXPAYER IDENTIFICATION NUMBER
CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, Form W-9 (Rev. October 2018), as issued by the Internal Revenue Service.
23. NON-APPROPRIATION OF FUNDS
Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY funds. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this AGREEMENT shall cover only those costs incurred up to the conclusion of the current fiscal year.
24. MODIFICATION OF AGREEMENT
The tasks described in this AGREEMENT and all other terms of this AGREEMENT may be modified only upon mutual written consent of CITY and CONSULTANT.
25. USE OF THE TERM “CITY”
Reference to “CITY” in this AGREEMENT includes City Manager or any authorized representative acting on behalf of CITY.
26. PERMITS AND LICENSES
CONSULTANT, at its sole expense, shall obtain and maintain during the term of this AGREEMENT, all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this AGREEMENT.
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 800
City of Goleta
Public Works Department – Rincon Consultants, Inc.
27. CAPTIONS
The captions or headings in this AGREEMENT are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the AGREEMENT.
28. AUTHORIZATION
Each party has expressly authorized the execution of this AGREEMENT on its behalf and bind said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers and any others who may claim through it to this AGREEMENT.
29. ENTIRE AGREEMENT BETWEEN PARTIES
Except for CONSULTANT'S proposals and submitted representations for obtaining this AGREEMENT, this AGREEMENT supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services, and contains all of the covenants and agreements between the parties with respect to said services.
30. 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.
31. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
TO CITY: Attention: Robert Nisbet, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: Attention: Chris Julian, Principal
Rincon Consultants, Inc.
209 East Victoria Street
Santa Barbara, CA 93101
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 801
City of Goleta
Public Works Department – Rincon Consultants, Inc.
32. COUNTERPARTS AND ELECTRONIC/FACSIMILE SIGNATURES
This Agreement may be executed in several counterparts, which may be facsimile or electronic copies. Each counterpart is fully effective as an original, and together constitutes one and the same instrument.
In concurrence and witness whereof , this AGREEMENT has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
_____________________________ _____________________________ Robert Nisbet, City Manager Steven Hongola, Vice President
A T T E S T
_____________________________ _____________________________ Deborah Lopez, City Clerk Lacrissa Davis, Chief Financial Officer
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 802
City of Goleta
Public Works Department – Rincon Consultants, Inc.
EXHIBIT A
SCOPE OF WORK
Task 1 – CEQA
This scope of work includes preparation of an Addendum to the city’s Final Initial Study-Mitigated Negative Declaration for the San Jose Creek Capacity Improvement & Fish Passage Project (Final MND; dated May 2007, with an approved addendum dated April 2008), pursuant to the CEQA. If, during the Consultant’sanalysis, the Consultant shall identify any new or additional significant impacts, the Consultant shall contact the city immediately to discuss an appropriate course of action (e.g., a Subsequent MND). The following tasks are included as part of the Consultant’s proposed scope of work.
Task 1.1 – Draft Addendum to the Final MND
The Consultant shall Draft Addendum and thus will serve as a second addendum to the original MND and include an introductory section describing the requirements of an addendum to a final MND, followed by a section that briefly describes the “approved project” evaluated in the 2007 Final MND and the proposed “current project.” The project location and limits of the “approved project” is shown below in Figure 1:
Figure 1 Approved Project Vicinity Map
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City of Goleta
Public Works Department – Rincon Consultants, Inc.
The Draft Addendum will also include a discussion and comparison of each environmental issue area analyzed in the 2007 Initial Study included as part of the Final MND to determine whether the current project would result in new significant environmental effects or substantially increase the severity of previously identified significant effects, or if mitigation measures would be considerably different from those in the 2007 Final MND. The Draft Addendum will rely on information and data from a desktop review, the 2007 Final MND, the 2008 Addendum, the Biological Resources Assessment (BRA) for the current project (included in Task 1.4), and the Cultural Resources Technical Report for the current project (included in Task 4) to the extent feasible. Additionally, because the current project will modify weir designs currently included in the Hollister Avenue Bridge Replacement Project, the Draft Addendum will also rely on, and incorporate by reference, the city’s 2015 Final MND for Hollister Avenue Bridge Replacement Project (2015 Final MND). Pursuant to CEQA Guidelines Section 15150, where all or part of another document is incorporated by reference, the incorporated language shall be considered to be set forth in full as part of the text of the current CEQA document. Because the current project components include modifications to both the San Jose Creek Fish Passage Project (as analyzed in the 2007 Final MND and the 2008 Addendum) and the Hollister Avenue Bridge Replacement Project (as analyzed in the 2015 Final MND), the Draft Addendum will discuss the changes in potential environmental impacts related to both projects. In addition to the environmental issue areas analyzed in the 2007 Final MND, since adoption of this Final MND, the topics of Forestry Resources, Energy, Tribal Cultural Resources, Wildfire, and (within
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 804
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Transportation) Vehicle Miles Traveled were added to the Environmental Checklist Form in Appendix G of the CEQA Guidelines. Therefore, the Draft Addendum will also discuss the potential for impacts associated with Forestry Resources, Energy, Tribal Cultural Resources, Wildfire, and Vehicle Miles Traveled.
Deliverables:
A Draft Addendum in electronic format (Microsoft Word and/or PDF) for city review
Assumptions:
One round of consolidated comments on the Draft Addendum will be addressed from the city
Task 1.2 – Final Addendum to the Final MND
The Consultant shall revise the Draft Addendum based on one round of consolidated comments from the city, to be provided in an electronic, editable format. The Final Addendum will be submitted in electronic format to the city.
This scope of work does not include providing documents that are accessible pursuant to the Americans with Disabilities Act (ADA) or printed copies. However, accessible documents and/or printed copies can be provided for an additional fee. Per the State CEQA Guidelines, the Addendum does not need to be circulated for public review but must be considered by the City’s decision makers.
Following a decision on the project, Consultant shall prepare a Notice of Determination (NOD) for filing by the city.
Deliverables:
A Final Addendum in electronic format (Microsoft Word and/or PDF) for city review
An electronic version (Microsoft Word and/or PDF) of the Notice of Determination (NOD) for filing by the city
Assumptions:
The city will pay all required filing fees
Task 1.3 –Meeting/Hearing Attendance
This task involves management, organization, and coordination with the city over the course of this scope of work. It also includes responding to telephone calls and emails regarding the project, monitoring the project budget and schedule,
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City of Goleta
Public Works Department – Rincon Consultants, Inc.
and other similar tasks. This task assumes meeting/hearing attendance by the Consultant’s Project Manager and/or CEQA Task Lead regarding the Addendum to the Final MND. If additional meeting/hearing time is requested by the city, a change order will be required.
Task 1.4 – Limited Biological Resources Assessment Update The Consultant shall provide a limited update to the previously completed Biological Resources Assessment (BRA) will largely be a database review to identify and evaluate any newly listed or candidate species to evaluate the potential for them to occur in the project. The following databases may be reviewed as part of the update: the CDFW California Natural Diversity Data Base (CNDDB), USFWS Critical Habitat Portal, California Native Plant Society (CNPS) Inventory of Rare and Endangered Plants of California, and CDFW Special Animals List. This scope of work assumes that no new species with the potential to occur will be identified. The existing regulatory setting section will be updated as needed to reflect recent regulatory changes. The analysis is not anticipated to require substantive updates, and the previously conducted Biological Resources Analysis will not be revised. Limited field data on vegetation and habitat types gathered as part of Task 2 will be included as well as figures updated with any new data and new project information.
An additional limited field effort will be conducted to inventory the protected native trees within the project site as part of the field effort in Task 2. Some trees in the project site have been inventoried recently (fall and winter 2022) and in the past (10 years ago) as part of the Hollister Avenue Bridge Replacement Project.
Data from those efforts will be used to the extent feasible and expanded where needed. All trees within the project footprint with diameter-at-breast-height (DBH) of 4 inches or greater will be mapped and tree condition and level of expected impact will be documented. A tree protection zone will be mapped and displayed on a graphic of the project site. The tree protection zone will be defined as the area within the tree dripline out to approximately 5-feet from the dripline to account for the tree’s critical root zone. The methods and results of the tree inventory will then be incorporated into the BRA.
This scope of work does not include agency consultation.
Deliverables:
A BRA in electronic format (Microsoft Word and/or PDF) for city review Assumptions:
Assumes one round of review and response to comments from the city No agency coordination will be necessary
The limited field work included in this task will be conducted as part of Task 2 and therefore, all time and expenses for the field effort is included in Task 2
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City of Goleta
Public Works Department – Rincon Consultants, Inc.
A stand-alone arborist report will not be prepared.
The BRA will include an assessment of the potential impacts to the Sister Witness Tree, as is required. Based on conversations with the project engineer, The Consultant understands and assumes there won’t be impacts to the tree as a result if the proposed project, which will result in a minimal and straightforward explanation and statement as such in the BRA. However, if the mapping and evaluation of the tree protection zones included as part of this task reveals that project activities may result in impacts to the Sister Witness Tree, additional impact assessments may be necessary and can be provided under additional authorization.
Task 2 – Aquatic Resources Delineation
The Consultant shall conduct a review of potential jurisdictional waters within the project footprint, specifically San Jose Creek and any adjacent wetlands/waters, using the most current regulatory guidance and methodologies provided by the USACE, CDFW, and CCRWQCB. This review will build on and reference previous reviews completed within the project. The final determination regarding jurisdictional resources will be made by the resource agencies; for this reason, the term “potential” is used when discussing jurisdictional waters. All potential wetlands and non-wetland waters of the U.S. (WOUS) will be delineated onsite, in accordance with the following:
Wetlands Delineation Manual (Environmental Laboratory 1987) Guidelines for Jurisdictional Determinations for Waters of the United States in the Arid Southwest (USACE 2001)
Regulatory Guidance Letter No. 05-05: Ordinary High Water Mark Identification (USACE 2005)
Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0) (USACE 2008a)
A Field Guide to the Identification of the Ordinary High-Water Mark (OHWM) in the Arid West Region of the Western United States (USACE 2008b)
Updated Datasheet for the Identification of the Ordinary High-Water Mark (OHWM) in the Arid West Region of the Western United States (USACE 2010)
Code of Federal Regulations sections that pertain to factors constituting the OHWM for non-wetland waters (“other waters”) (33 CFR 328.3 and 33 CFR 328.4)
The City of Goleta’s New Zoning Ordinance (2020)
The California Coastal Act (California Coastal Commission 2022)
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City of Goleta
Public Works Department – Rincon Consultants, Inc.
Potential CDFW jurisdiction will be delineated in accordance with Section 1602(a) of the California Fish and Game Code (CFGC), including streambeds to the top of the bank and associated riparian vegetation, whichever is greater.
Potential CCRWQCB jurisdiction will be consistent with the agency’s established practice, limited to the top of the physical bank or the landward dripline of riparian vegetation, whichever is broader.
The results of the jurisdictional delineation will be presented in a Jurisdictional Delineation Report (JDR) suitable for submittal as an attachment to the permit applications/notifications discussed below for this project. The JDR will include a discussion of methodologies and results that detail the background information, field observations and data collected, and a summary of findings. Using a recent high-resolution aerial photograph and topographic map of the project site, Consultant shall overlay data collected using a Global Positioning System (GPS) unit capable of sub-meter accuracy to identify data collection locations and other pertinent biological information for submittal with the report. A project location map, data observation forms, a vegetation community map, and a delineation map will also be included.
Deliverables:
Jurisdictional Delineation Report (JDR) for USACE, CCRWQCB, and CDFW permit applications/notifications
Assumptions:
Only one field survey day will be required to conduct the formal jurisdictional delineation and limited field efforts as noted in Task 1.4 One round of comments on the JDR from the city
Access and permission to enter will be provided to Consultant in writing prior to the field survey
No access issues will be encountered during any of the pedestrian surveys
Task 3 -- Regulatory Permitting
Based on basic project information for this stream improvement project, the project is anticipated to require a federal Clean Water Act (CWA) Section 404 permit from the USACE and the issuance of a Water Quality Certification (WQC) from the CCRWQCB pursuant to Sections 404 and 401 of the CWA. It is assumed that the project will qualify for the USACE Nationwide Permit (NWP) Program and not require a higher level of authorization. A Streambed Alteration Agreement (SAA) from the CDFW pursuant to Section 1600 et seq. of the CFGC is also anticipated to be required. As San Jose Creek is designated steelhead trout critical habitat, a
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 808
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Section 7 consultation with the NMFS will be required. Due to the nature of the project (fish habitat restoration), an alternatives analysis and Compensatory Mitigation Plan are not anticipated to be required, and therefore will not be prepared under this scope. The limited impacts to trees and willow habitat will likely result in agency-requested restoration, and therefore a Restoration Plan will be prepared.
The Consultant shall work closely with the city to quickly identify and gather the appropriate application documentation for the project and coordinate with the agencies to help ensure the permitting process is completed as quickly and efficiently as possible. Consultant shall provide the city with the completed application packages for review and comment prior to submittal to the resource agencies. The following tasks include anticipated services necessary to obtain permits/authorizations for proposed impacts to jurisdictional waters onsite.
Task 3.1 – USACE Nationwide Permit PCN Preparation
Under Section 404(e) of the CWA, the USACE can issue NWPs to authorize activities that have minimal individual and cumulative adverse environmental effects. Consultant anticipates that NWP 27 for Aquatic Habitat Restoration, Enhancement, or Establishment Activities will be applicable to the project. As part of this proposed scope of work, Consultant shall prepare a USACE Pre- Construction Notification (PCN) checklist for NWP 27 and supporting documents.
Consultant shall rely on waters data collected in Task 2 for the project to determine limits of jurisdiction. Consultant shall submit the PCN package to the city for review, incorporate one round of requested changes, and upon approval, submit the package to the USACE unless otherwise directed.
Deliverables:
A PCN package for NWP 27, including the PCN checklist, JDR, required maps, and project information
Assumptions:
NWP 27 will be available and applicable for the project PCN is accepted by USACE on first submittal (i.e., applications deemed complete)
Previously gathered aquatic resources data can be utilized for this project Project design plans, including GIS files denoting the limits of permanent and temporary disturbance, will be provided by the city Cultural resources review to satisfy the USACE’s Section 106 requirements will be provided under Task 4 of this scope of services, and additional review will not be required
If project design details change during the permitting process, additional Consultant effort and cost will be required
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 809
City of Goleta
Public Works Department – Rincon Consultants, Inc.
The USACE will not require an evaluation of alternatives The USACE will view the project as restoration and not require mitigation One round of comments on the PCN package from the city
Task 3.2 – CCRWQCB Water Quality Certification Application Preparation Section 401 of the CWA requires that any person applying for a federal permit or license, which may result in a discharge into WOUS, must obtain a WQC that certifies the activity complies with all applicable water quality standards, limitations, and restrictions. An individual WQC is anticipated to be necessary. The Consultant shall request a virtual pre-application meeting with the CCRWQCB and coordinate with CCRWQCB staff to confirm certification requirements in accordance with the U.S. Environmental Protection Agency’s (EPA) Clean Water Act Section 401 Certification Rule. The Consultant shall prepare a WQC application and supporting documentation, provide it to the city for review and comment, incorporate one round of requested changes, and upon approval, submit the application to the CCRWQCB unless otherwise directed. Based on the final site plans, Consultant shall calculate the anticipated CCRWQCB application fee. Based on the nature of the project, an analysis of alternatives is not anticipated to be required and therefore not included in this scope of services.
Deliverables:
Application for CWA Section 401 WQC and supporting documentation Assumptions:
The Consultant shall request and attend one (1) virtual pre-submittal meeting with CCRWQCB staff, concurrent with USACE, and CDFW staff (not to exceed two [2] hours)
WQC application package will be accepted by CCRWQCB on first submittal (i.e., applications deemed complete)
The CCWQCB will not require an evaluation of alternatives The CCWQCB will view the project as restoration and not require mitigation
One round of comments on the WQC application package from the city The city will be responsible for the WQC application fees and will coordinate the payment of these fees
Task 3.3 – CDFW Streambed Alteration Agreement Preparation The project is anticipated to require a SAA under Section 1600 et seq. of the CFGC. CDFW requires notification through submittal of a Notification of Lake/Streambed Alteration (Notification). The Consultant shall request a virtual pre-submittal meeting with CDFW and coordinate with CDFW staff to confirm
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 810
City of Goleta
Public Works Department – Rincon Consultants, Inc.
notification requirements, including the CDFW fisheries team. Consultant shall prepare the Notification and supporting documentation, provide documentation to the city for review and comment, incorporate one round of requested changes, and upon the City’s approval, submit the application to the CDFW, unless otherwise directed. As part of the application, payment of a fee to the CDFW is required and dependent on the project cost.
Deliverables:
A CDFW SAA Notification and supporting documentation
Assumptions:
The Consultant shall request and attend one (1) virtual pre-submittal meeting with CDFW staff (concurrent with USACE, and CCRWQCB staff) (not to exceed two [2] hours)
CDFW input on notification requirements, including from the fisheries team, will be provided during the pre-submittal meeting The CDFW will view the project as restoration and not require mitigation Permit application is accepted by CDFW on first submittal (i.e., applications deemed complete)
Basic description of project and site conditions and potential for species to occur will be consistent with the information prepared as part of the CEQA addendum in Task 1
One round of comments on the Notification package from the city The city will be responsible for the Notification fees and will coordinate the payment of these fees
Task 3.4 – Permit Tracking and Agency Coordination
Once the applications are submitted, ongoing coordination with the USACE, CCRWQCB, and CDFW is needed to answer questions and help ensure that any potential issues are identified and resolved at the earliest possible opportunity.
Coordination may include telephone, email, and/or written correspondence. The Consultant shall provide up to 40 hours of support post-submittal of the applications/notifications outlined in Tasks 3.1 through 3.3. This support may include requests for additional information, responses to comments, additional meetings, or any other agency request to support the project’s interests and schedule. Should additional time be necessary in excess of the 40 hours , the Consultant shall notify the city prior to exhaustion of this budget.
Deliverables:
The Consultant shall coordinate and communicate with the agencies during the permit review and approval process
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 811
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Email summaries of meetings and correspondence that include verification of agency requirements or other relevant information
The Consultant shall review draft permits from the agencies and identify problematic permit conditions
The Consultant shall coordinate with the city and the agencies to assist in obtaining final permit authorizations
Task 3.5 – Preparation of CCC Coastal Development Permit (CDP) Application and Limited Post-Application Support
The Consultant shall prepare a CDP application for the project for submission to the CCC. The project description completed as a part of the USACE, CCRWQCB, and CDFW applications will be used for permit application submittal, as needed.
This task includes:
Pre-application submittal communications and up to one (1) remote meeting with CCC Staff (if required) concurrent with the pre-application meeting with USACE, CCRWQCB, and CDFW
Post-application submittal CCC completeness review support and response
Communication and coordination in support of the CCC hearing including attendance and response to comments (if necessary)
Posting the CCC notification on site and provide documentation Submission of the self-addressed stamped envelopes required by the CCC for noticing
Limited support from City Planner (subcontractor to Consultant), Laura Bridley, to support the CDP application and processing
Assumptions:
Includes pre-application submittal communications and up to three (3) remote meetings with CCC Staff (if required) concurrent with the pre- application meeting with USACE, CCRWQCB, and CDFW
Post-application support and responses, including completeness response letter, communication and coordination in support of the CCC hearing including attendance and response to comments (if necessary) Assumes the city will provide the owner noticing list to be included in the initial CCC submittal
The Consultant shall post the CCC notification on site and provide documentation
The city will coordinate all signatures required for CCC application including required local approvals for the proposed project, such as zoning variances, use permits, etc., as noted on Local Agency Review Form, Appendix B
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 812
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Biological reviews as part of Tasks 1 and 2, as well as the Cultural Resources review provided in Task 4 will be sufficient for this application, and no additional reviews will be required
Does not include estimated permit fees; permit fees assumed to be paid directly by the city, if determined to be required after consultation with the CCC (refer to Appendix E page 19 of the CCC CDP application) The city will provide project plans that will be suitable for submission to the CCC and include site, grading, and erosion control plans Support from the City Planner (contractor to Consultant), Laura Bridley, will be limited to $12,500, to include effort to notice envelopes based on a list of owners within 100-feet, provided by the city
Deliverables:
CCC CDP Application Package and supporting materials (application, Project Description, biological reports, figures, etc.) Summary of on-site posting and notification
One (1) completeness response letter
Task 3.6 – Informal Section 7 Consultation Support with USFWS and NMFS The project location within San Jose Creek is designated critical habitat for steelhead trout. Additionally, the southern end of the project is within critical habitat for the tidewater goby. As such, the Consultant expect that the USACE will need to engage in Section 7 consultation with the NMFS as part of permitting, and USFWS if impacts are proposed to critical habitat for tidewater goby. Under Section 7, federal agencies (i.e., USACE) must consult with the USFWS and/or NMFS when any action the agency carries out, funds, or authorizes (such as through a permit; 404 permit) may affect a listed endangered or threatened species or designated critical habitat. This process usually begins as informal consultation. Consultations are initiated when the USACE issues a letter to the USFWS or NMFS to request the initiation of Section 7 consultation. It is anticipated that USFWS and NMFS will concur that the project is “not likely to adversely affect” any listed species or designated critical habitat, and no formal consultation will be warranted.
To support the consultations with USFWS and NMFS, the Consultant shall prepare a Biological Assessment (BA) in accordance with the requirements of Section 7(a)(2) of the federal Endangered Species Act (16 United States Code 1536(c)) and interagency implementing regulations at 50 Code of Federal Regulations Part 402. Relevant literature and databases, such as the California Natural Diversity Database, the USFWS and NMFS Critical Habitat maps, prior biological technical studies performed in the project area during previously completed CEQA as well as under Task 1, project plans, aerial photographs, and topographic maps, will be examined. No additional field survey is anticipated.
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 813
City of Goleta
Public Works Department – Rincon Consultants, Inc.
The Consultant shall utilize previous general survey results (conducted under Tasks 1 and 2) to document the existing conditions of the project site and evaluate the suitability of habitat for tidewater goby and steelhead trout. The BA will describe habitat suitability and occurrence history of tidewater goby and steelhead trout within the project area. The BA will address effects to tidewater goby, steelhead trout, and their critical habitats and will include conservation measures (incorporated into the proposed action) to reduce the likelihood and magnitude of identified effects, as well as include an effects determination for the steelhead and for its critical habitat.
The Consultant shall anticipate to submit the NWP 27 PCN (Task 3.1) with the BA to the USACE, prior to the commencement of Section 7 consultation.
Deliverables:
One BA report for Section 7 consultation with USFWS for tidewater goby and its designated critical habitat, and NMFS for steelhead trout and its designated critical habitat
Assumptions:
Section 7 consultation is limited to USFWS for coordination on tidewater goby and its critical habitat and NMFS for coordination on steelhead trout and its critical habitat. If other species are identified that require consultation, additional authorization may be required. The hydrology/water quality analysis completed in the CEQA process for the downstream Hollister Avenue Bridge Replacement Project will be provided to the Consultant by the city, will be adequate for NMFS, and additional review will not be needed
A formal Section consultation will not be warranted
The USFWS may request a survey for the tidewater goby, which will be completed under Task 7
Task 3.7 – Restoration Plan
The Consultant shall prepare a Restoration Plan to address temporary impacts to protected native trees and riparian habitat within jurisdictional waters that would result from the proposed project. The Restoration Plan will be prepared to satisfy anticipated requirements of the USACE, CDFW, and CCRWQCB requirements, which have jurisdiction over activities affecting San Jose Creek. The Restoration Plan will summarize the project description, restoration objectives, biological setting, and site selection, as well as outline the restoration approach, source of plant materials, seed storage and plant propagation, plant installation methods, performance criteria, schedule, and the long-term maintenance, monitoring, and reporting program.
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 814
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Given that the intent of the project is to restore fish passage and provide fish habitat, The consultant shall assume that the project will be viewed as restoration, and temporary impacts will be restored at a 1:1 ratio. The Consultant shall assume that mitigation will not be required. The Consultant shall anticipate that a Restoration Plan proposing restoration of the riparian areas that will be temporarily impacted by the Project will be sufficient, and that limited additional and immediately adjacent land would only be utilized for restoration efforts as needed to address replacement of individual protected native trees that cannot fit within the temporary impact restoration areas, i.e., removing non-native vegetation to allow for installation of native trees an understory.
Deliverables:
x A Restoration Plan in electronic format (Microsoft Word and/or PDF) for city review, either as a standalone document or as part of the project description in the agency permit applications
Assumptions:
x Assumes one round of review and response to comments from the city x Assumes one round of review and response to comments from CDFW and CCRWQCB; that comments and changes will be limited and will not exceed a total of 5 hours
x The overall project will be viewed as environmentally beneficial by the agencies, and restoration of temporarily disturbed areas will be sufficient, and mitigation will not be required
x A Compensatory Mitigation Plan will not be required
x The Santa Barbara County Flood Control District will approve of the city- approved restoration plan without change
Task 4 – Cultural Resources Review and Coordination
The Consultant shall prepare the necessary cultural resources studies for the project to meet the requirements of the California Environmental Quality Act (CEQA) and Section 106 of the National Historic Preservation Act (NHPA).
Typically, the USACE does not accept reports that contain both CEQA and Section 106 language. Therefore, the cultural study will adhere to standards required for NHPA compliance but may be used to inform the project CEQA documents (MND).
Task 4.1 – Area of Potential Effects Map
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 815
City of Goleta
Public Works Department – Rincon Consultants, Inc.
In accordance with the regulations of 36 CFR 800.16(d), the Consultant shall prepare an Area of Potential Effects (APE) map that delineates an area of direct impacts (i.e., all areas of project ground disturbance including staging areas). The Consultant anticipates the direct APE will be limited to areas in which improvement activities will occur. The Consultant shall prepare and submit the APE map for approval by the City and the USACE. Upon approval of the APE map by the City and USACE, Consultant shall conduct Tasks 4.2 through 4.6.
Task 4.2 – Cultural Resources Records Search
A cultural resources records search was previously performed for the San Jose Creek Capacity Improvement Project on January 14, 2009 (SAIC 2009). The USACE requires records search results no more than two years old. Therefore, the Consultant shall conduct a California Historical Resources Information System (CHRIS) records search of the project APE and a 0.5-mile radius surrounding it at the Central Coast Information Center (CCIC) located at the Santa Barbara Museum of Natural History. The primary purpose of the records search is to identify previously recorded cultural resources known to exist within or near the APE. In addition to the archaeological inventory records and reports, an examination will be made of historical maps, the National Register of Historic Places (NRHP), California Register of Historical Resources (CRHR), the California Historical Landmarks list, California Points of Historical Interest List, California Built Environment Resource Directory and Archaeological Determinations of Eligibility List. The records search will also reveal the nature and extent of any cultural resources work previously conducted within the APE and adjacent vicinity. Due to the COVID-19 pandemic, the CCIC has suspended in-house records search appointments. CCIC staff are experiencing delays and turnaround times are approximately 2 to 3 weeks. Upon APE map approval by the City and USACE, Consultant shall provide the City and USACE with a schedule update.
Task 4.3 – Native American Heritage Commission
The Consultant shall contact the Native American Heritage Commission (NAHC) to request a Sacred Lands File (SLF). The SLF search will indicate whether cultural resources important to Native Americans are present within the vicinity of the APE.
This task does not constitute formal Native American Consultation under Assembly Bill 52 (AB 52). The Consultant shall assume the city will manage consultations under AB 52 without the Consultant’s assistance. Furthermore, Consultant understands that the USACE manages any consultations under Section 106, internally without assistance from consultants. Limited AB52 support will be provided under Task 6.
Task 4.4 – Local Interested Party Outreach
The Consultant shall contact individuals and/or organizations who may have knowledge of, or concerns with, historic properties in the area. Outreach will
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 816
City of Goleta
Public Works Department – Rincon Consultants, Inc.
include inquiries to local governments and local historic groups regarding their knowledge of historic properties in the immediate vicinity of the APE. The Consultant shall follow up with each of these groups via email or by telephone.
Task 4.5 – Pedestrian Survey
Upon completion of the records search, the Consultant shall conduct a Phase I pedestrian survey of the APE. The Consultant archaeologist shall conduct the survey using transects spaced at maximum intervals of 15 meters with transect accuracy maintained through use of a hand-held global positioning system (GPS) unit. Results of the previous records search performed for the San Jose Creek Capacity Improvement Project indicate that no cultural resources are documented within the current project APE. One previously recorded historic-period resource (CA-SBA-2204) and three prehistoric resources (CA-SBA-45, -46, and -1696) were identified within the 0.5-mile search radius and are located approximately
0.3-mile from the APE. Therefore, for the purposes of this scope, the Consultant assumes that no cultural resources will be identified. No artifacts, samples, or specimens be collected during the survey. The Consultant assumes the survey effort will be completed by one archaeologist in a single 8-hour day, inclusive of travel time. The Consultant also assumes that the project APE will only include the approximately 8-acre direct project footprint and that an indirect APE will not need to be surveyed.
Task 4.6 – Cultural Resources Technical Report
The Consultant shall prepare a Cultural Resources Technical Report documenting the results of the cultural study, as well as provide management recommendations for cultural resources within or near the project APE. The report will be included as an appendix to the MND Addendum being prepared for the project under Task 1.
The report will be prepared following the California Office of Historic Preservation’s Archaeological Resource Management Reports (ARMR): Recommended Contents and Format. The report will include figures depicting the area surveyed and studied for cultural resources. Draft copies of the report (digital pdf) will be submitted to the city and USACE for review and approval. The Consultant assumes one round of revisions based on one round of comments from the city and USACE will be necessary to address cultural resources concerns. Once reviewed, digital copies of the final report will be prepared and submitted.
Consultant assumes that consultation with the State Historic Preservation Office (SHPO) will be handled by USACE, and that Consultant shall not be needed for support with the consultation process.
Deliverables:
One APE Map for review by the city and the USACE
One Cultural Resources Technical Report
Assumptions:
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 817
City of Goleta
Public Works Department – Rincon Consultants, Inc.
The City of Goleta will serve as the lead agency under CEQA The USACE will serve as the lead federal agency under Section 106 Approximate turn-around time for CCIC records search results is anticipated to be 2 to 3 weeks upon receipt of request
The survey of the APE will be completed by a single archaeologist in a single 8-hour day, inclusive of travel time
No artifacts, samples, or specimens be collected during the survey No cultural resources will be encountered during the field survey that require recordation, updates, or evaluations for the NRHP or CRHR All deliverables will be delivered electronically
One rounds of revisions based on one round of comments from the city and USACE will be necessary to address cultural resources concerns A copy of the Cultural Resources Technical report will be submitted to the CCIC after review and approval by the city and USACE
Consultation with SHPO will be handled by USACE and that Consultant shall not be needed for support with the consultation process
Task 5 - Project Management and Client Coordination
The Consultant shall be highly responsive to project needs through effective project management and coordination with the various parties involved to ensure all project requirements described above are met and in an efficient and cost- effective manner. The Consultant shall provide regular communication to the city throughout the course of the permitting process regarding project needs, changes, schedule, budget, and deliverables. This task includes miscellaneous activities required to manage the various tasks above such as regular e-mail and telephone communications and other tasks associated with contract administration, invoicing, and client coordination. The task covers internal quality control procedures, which include the Consultant Program Manager and Principal review of all submittals that will be prepared under this work program. This task also includes clerical work and production and shipping of submittals to the agencies. This task is largely comprised of effort for the Consultant’s staff to attend the biweekly team calls organized by the city to provide project status and solicit feedback from the city’s project team.
This work program will be executed under the direction of the Consultant Principal Regulatory Specialist Christopher Julian and Senior Biologists/Project Managers Julie Love and Elizabeth Atherton, all of whom have extensive experience overseeing similar regulatory permitting projects.
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 818
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Task 6 - Assembly Bill 52 Consultation Assistance
The Consultant shall assist the City with AB 52 consultation so the Tribal Cultural Resources section of the MND Addendum can be prepared in support of Tasks 1 and 4. Under AB 52, the city acting as the lead CEQA agency, is required to begin consultation with California Native American tribes that are traditionally and culturally affiliated with the project area prior to the completion of the MND Addendum (Tasks 1.1 and 1.2). Under this task, the Consultant shall assist the city with consultation for AB 52 by requesting a list of AB 52-specific Native American contacts from the NAHC. The Consultant shall provide the city letter templates, checklists, and detailed instructions to ensure meaningful consultation with interested Native American groups can be completed in accordance with AB 52.
Task 7 – Tidewater Goby Presence/Absence Survey
If a survey is requested for the tidewater goby by the USFWS during the informal consultation in Task 3.6, Consultant shall develop a plan to effectively conduct these surveys to meet the guidelines identified by USFWS and provide a high probability of locating any potential gobies located within the project area. The Consultant shall prepare and file notifications with the CDFW and USFWS to obtain approval to complete the protocol survey, as required per the USFWS Recovery Permit for tidewater goby and CDFW Scientific Collecting Permit protocols.
The survey will be carried out in a single survey day to assess the presence or absence of tidewater goby and led by Ms. Julie Love who holds a USFWS Recovery Permit for tidewater goby (No. TE-217402-2). Ms. Love will serve as the “qualified biologist” who has been fully trained and authorized to survey for and potentially handle tidewater gobies as required by USFWS protocol. Two support biologists will assist the qualified biologist. The survey results will be documented and provided via a brief memorandum to be provided to the USFWS and CDFW.
Deliverables:
Notifications to the CDFW and USFWS for protocol-survey approval Memorandum with survey results in support of the Section 7 informal consultation with USFWS
Assumptions:
One survey day will be performed, limited to 10 hours each for three personnel (inclusive of travel)
The survey report will be supplied to the city within two weeks following the completion of the survey effort
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 819
City of Goleta
Public Works Department – Rincon Consultants, Inc.
The Consultant “qualified biologist” shall be based out of the Santa Barbara office and complete one survey day, to be joined by two associate biologists
Costs include expenses for fisheries equipment, including water quality testing and netting
Task 8 – Incidental Take Permit Preparation, Submittal, and Limited Coordination
The Consultant shall prepare and submit an Incidental Take Permit (ITP) application for project impacts to steelhead trout. The application will be in letter format, organized in accordance with the permit application requirements set forth in CDFW regulations at 14 CCR 783.2. In addition to standard applicant and project information, the ITP application must also include the following:
The common and scientific names of the species to be covered by the permit and the species' status under CESA, including whether the species is the subject of rules and guidelines pursuant to Section 2112 and Section 2114 of the Fish and Game Code
A complete description of the project or activity for which the permit is sought
The location of where the project or activity is to occur or to be conducted An analysis of whether and to what extent the project or activity for which the permit is sought could result in the taking of species to be covered by the permit
An analysis of the impacts of the proposed taking on the species An analysis of whether issuing the ITP would jeopardize the continued existence of a species, including consideration of the species' capability to survive and reproduce, and any adverse impacts of the taking on those abilities in light of (A) known population trends, (B) known threats to the species, and (C) reasonably foreseeable impacts on the species from other related projects and activities
Proposed measures to minimize and fully mitigate the impacts of the proposed taking
A proposed plan to monitor compliance with the minimization and mitigation measures and the effectiveness of the measures A description of the funding sources and the level of funding available for implementation of the minimization and mitigation measures Certification language as required by CDFW
The Consultant shall be available to coordinate with the city and the CDFW during review of the ITP application letter as described under the cost assumptions below.
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 820
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Deliverables:
ITP Application in electronic letter format
Assumptions:
The Consultant shall review two rounds of consolidated comments from the City as well as associated revisions prior to submittal. The Consultant cost assumes revisions would be relatively minor.
The Consultant shall review one round of consolidated comments from CDFW as well as associated revisions. The Consultant cost assumes revisions would be relatively minor.
No additional surveys or reconnaissance site visits are necessary to complete the ITP application. The Consultant shall assume that surveys and site visits conducted under Task 2 will be sufficient to complete the application and describe existing conditions.
Previous project design and modelling work to satisfy NMFS will be acceptable to CDFW and not need to be revisited
The Consultant shall assume presence of steelhead trout; intensive fish surveys are not proposed
The Consultant scope and cost does not includea mitigation plan since the Consultant shall assume that no compensatory mitigation for habitat impacts will be required due to restorative nature of the project for this species If required by CDFW, the Consultant shall prepare this plan under an additional scope and cost.
Cost includes up to 20 hours of coordination time with CDFW and city outside of application preparation and addressing comments The city will be responsible for the application fees and will coordinate the payment of these fees
ASSUMPTIONS
The Consultant has made the following general assumptions regarding the overall work project and program:
The city will provide supporting digital files, georeferenced CAD files, and other information and data required for the surveys, JDR, and permit applications
Meetings will be conducted every two weeks to discuss project status and updates
The resource agencies will adhere to typical permit processing timeframes Existing project plans, analyses, and technical reports will be adequate for agency permit processing
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 821
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Digital copies of application materials will be submitted to the city. One round of minor revisions to the applications will be necessary following review.
If the resource agencies require preparation of more comprehensive application materials or extensive consultations than assumed above, the Consultant shall notify the City immediately and determine if an amendment to the work scope is necessary
If rare plants are identified, additional surveys may be required that can be authorized under separate cover.
While not anticipated, the Consultant shall notify you immediately if the Consultant confirm that an archaeological resource is identified within the project site during the records search or pedestrian field survey.
SCHEDULE
The Consultant shall initiate this project immediately following receipt of a signed contract and written Notice to Proceed (NTP), but it is understood that sufficient design of the project will be required prior to commencing on most tasks, expected early 2023. The duration of the tasks is expected to be 12 to 18 months.
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 822
City of Goleta
Public Works Department – Rincon Consultants, Inc.
EXHBIT B
Schedule of Fees
Professional, Technical and Support Personnel* Hourly Rate Principal II $295
Director II $295
Principal I $285
Director I $285
Senior Supervisor II $268
Supervisor I $250
Senior Professional II $234
Senior Professional I $218
Professional IV $194
Professional III $180
Professional II $160
Professional I $143
Associate III $120
Associate II $107
Associate I $100
Field Technician $86
Data Solutions Architect $180
Senior GIS Specialist $172
GIS/CADD Specialist II $153
GIS/CADD Specialist I $138
Technical Editor $135
Project Accountant $115
Billing Specialist $98
Publishing Specialist $110
Clerical $98
* Professional classifications include environmental scientists, urban planners, biologists, geologists, marine scientists, GHG verifiers, sustainability experts, cultural resources experts, and other professionals.
Reimbursable Expenses
Direct Cost Rates
Photocopies – Black and White $0.25 (single-sided), $0.45 (double-sided) Photocopies – Color $1.55 (single-sided), $3.10 (double-sided) Photocopies – 11 x 17 $0.55 (B&W), $3.40 (color)
Oversized Maps $8.50/square foot
Digital Production $15/CD, $20/flash drive
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 823
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Other direct costs associated with the execution of a project, that are not included in the hourly rates above, are billed at cost plus .These may include, but are not limited to, laboratory and drilling services, subcontractor services, authorized travel expenses, permit charges and filing fees, mailings and postage, performance bonds, sample handling and shipment, rental equipment, and vehicles other than covered by the above charges.
Equipment Rate
Environmental Site Assessment
Soil Vapor Extraction Monitoring Equipment $160
Four Gas Monitor $137
Flame Ionization Detector $110
Photo Ionization Detector $82
Hand Auger Sampler $62
Water Level Indicator, DC Purge Pump $46
CAPDash $7,500
Natural Resources Field Equipment
UAS Drone $276
Spotting or Fiberoptic Scope $170
Pettersson Bat Ultrasound Detector/Recording Equipment $170 Sound Level Metering Field Package (Anemometer, Tripod and Digital Camera) $113 GPS (Submeter Accuracy) $67
Infrared Sensor Digital Camera or Computer Field Equipment $57 Scent Station $23
Laser Rangefinder/Altitude $11
Pitfall Traps, Spotlights, Anemometer, GPS Units, Sterilized Sample Jar $9 Mammal Trap, Large/Small $1.55/$0.55
Water and Marine Resources Equipment
Boat (26 ft. Radon or Similar) $621
Boat (20 ft. Boston Whaler or Similar) $345
Multi Parameter Sonde (Temp, Cond, Turbidity, DO, pH) with GPS $170 Water Quality Equipment (DO, pH, Turbidity, Refractometer, Temperature) $62 Refractometer (Salinity) or Turbidity Meter $38
Large Block Nets $114
Minnow Trap $98
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 824
City of Goleta
Public Works Department – Rincon Consultants, Inc.
Net, Hand/Large Seine $57
Field Equipment Packages
Standard Field Package (Digital Camera, GPS, Thermometer, Binoculars, Tablet, Safety Equipment, and Botanic Collecting Equipment)
$114
Remote Field Package (Digital Camera, GPS, Thermometer, Binoculars, Tablet and Mifi, Delorme Satellite Beacon, 24Hour Safety Phone)
$144
Amphibian/Vernal Pool Field Package (Digital Camera, GPS, Thermometer, Decon Chlorine, Waders, Float Tube, Hand Net, Field Microscope) $170
Fisheries Equipment Package (Waders, Wetsuits, Dip Nets, Seine Nets, Bubblers, Buckets) $57 Underwater and Marine Sampling Gear (U/W Photo/Video Camera, Scuba Equipment (Tanks, BCD, Regulators, Wetsuits, etc.)
$57/diver
Marine Field Package (PFDs – Personal Flotation Devices, 100-foot Reel Tapes with Stainless Carabiners, Pelican Floats, Underwater Slates, Thermometer, Refractometer, Anemometer, Various Field Guides)
$57
Effective January 1, 2023
DocuSign Envelope ID: B562E27A-D0F8-403E-83E8-5A6D34223C93 825
ATTACHMENT 12
Professional Design Services Agreement 2024-088 with Mark Thomas and Company, Inc.
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
Project Name: San Jose Creek Multipurpose Path Northern and Southern Segments
AGREEMENT FOR PROFESSIONAL DESIGN SERVICES
BETWEEN THE CITY OF GOLETA
AND
MARK THOMAS AND COMPANY, INC
This AGREEMENT FOR PROFESSIONAL DESIGN SERVICES (herein referred to as “AGREEMENT”) is made and entered into this ________ day of BBBBBBBBBB, 2024, by and between the CITY OF GOLETA , a municipal corporation (herein referred to as "CITY"), and MARK THOMAS AND COMPANY, INC.; a Stock Corporation (herein referred to as "CONSULTANT").
SECTION A. RECITALS
1. The CITY has a need for professional design services for the San Jose Creek Multipurpose Path Northern and Southern Segments Project; and
2. The CITY does not have the personnel able and/or available to perform the services required under this AGREEMENT, and therefore, the CITY desires to contract for professional services to accomplish this work; and
3. The CITY procured these services in compliance with Goleta Municipal Code Section 3.05.260; and
4. The City Manager approved this AGREEMENT pursuant to Goleta Municipal Code section 3.05.070.
SECTION B. TERMS
1. RETENTION AS CONSULTANT
CITY hereby retains CONSULTANT, and CONSULTANT hereby accepts such engagement, to perform the services described in Section 2.
CONSULTANT warrants it has the qualifications, experience, and facilities to properly and timely perform said services.
2. DESCRIPTION OF SERVICES
The services to be performed by CONSULTANT are as follows:
Professional Design Services in conjunction with the San Jose Creek Multipurpose Path Northern and Southern Segments Project shall generally include assistance in coordination with Union Pacific Railroad and the California Public Utilities Commission for
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approvals related to the project as more particularly set forth in the Scope of Work, attached as Exhibit “A,” and incorporated herein.
CONSULTANT shall deliver to CITY the deliverables defined in Exhibit “A.”
3. COMPENSATION AND PAYMENT
(a) Maximum and Rate . The total compensation payable to CONSULTANT by CITY for the se rvices under this AGREEMENT SHALL NOT EXCEED the sum of $42,000 (herein "not to exceed amount"), and shall be earned as the work progresses on the following basis:
Hourly at the hourly rates and with reimbursement to
CONSULTANT for those expenses set forth in CONSULTANT's Rate Schedule marked Exhibit "B," attached and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon CONSULTANT until June 30, 2026, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice of any rate increase request), provided the not to exceed amount is the total compensation due CONSULTANT for all work described under this AGREEMENT.
(b) Payment . CONSULTANT shall provide CITY with written verification of the actual compensation ear ned, which written verification shall be in a form satisfactory to CITY's Project Manager, as described in Section 5.
Invoices shall be made no more frequently than on a monthly basis, and describe the work performed (including a list of h ours worked by personnel classification).
All payments shall be made within 30 days after CITY’s approval of the invoice.
4. EXTRA SERVICES
CITY shall pay CONSULTANT for those CITY authorized extra services, not reasonably included within the services described in Section 2, as mutually agreed to writing in advance of the incurrence of extra services by CONSULTANT. Unless CITY and CONSULTANT have agreed in writing before the performance of extra services, no liab ility and no right to claim compensation for such extra services or expenses shal l exist. The applicable hourly rates for extra services shall be at the hourly rates set forth in Exhibit B, if one is included as part of this agreement. Any compensation for extra services shall be part of the total compensation and shall not increase the not to exceed amount identified in Section 3.
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
5. CITY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by CONSULTANT shall be accomplished under the general direction of, and coordinate with, CITY's "Project Manager", as that staff person is designated by CITY from time to time, and who presently is Teresa Lopes. Project Manager shall have the authority to act on behalf of the CITY in administering this AGREEMENT but shall not be authorized to extend the term of the AGREEMENT or increase the not to exceed amount.
6. TERM, PROGRESS AND COMPLETION
The term of this AGREEMENT is from the date first written above to June 30, 2026, unless term of this AGREEMEN T is extended, or the AGREEMENT is terminated as provided for herein.
CONSULTANT shall not commence work on the services to be performed until (i) CONSULTANT furnishes proof of insurance as required by Section 10 below, and (ii) CITY gives written authorization to proceed with the work provided by CITY's Project Manager.
7. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports and other documentation (other than CONSULTA NT's drafts, notes and internal memorandum), including duplication of same prepared by CONSULTANT in the performance of these services, are the property of CITY. CITY shall be entitled to immediate possession of the same upon completion of the work under this AGREEMENT, or at any earlier or later time when requested by CITY. CITY agrees to hold CONSULTANT harmless from all damages, claims, expenses, and losses arising out of any reuse of the plans and specifications for purposes other than those described in this AGREEMENT, unless written authorization of CONSULTANT is first obtained.
8. PERSONAL SERVICES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for profession al services which are personal to CITY. Pat Somerville is deemed to be specially experienced and is a key member of CONSULTANT's firm, and shall be directly involved in the performance of this work. This key person shall communicate with, and periodically report to, CITY on the pr ogress of the work. Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this AGREEMENT. This AGREEMENT may not be assigned or subcontracted without the City Manager’s prior written consent.
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
9. HOLD HARMLESS AND INDEMNITY
(a) Indemnification and Defense for Professional Service. To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless the CITY and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all claims, losses, liabilities, damages, costs and expens es, including attorney’s fees and costs, to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful mi sconduct of the CONSULTANT.
CONSULTANT’s duty to defend shall consist of reimbursement of defense costs incurred by CITY in direct proportion to the CONSULTANT ’s proportionate percentage of fault. CONSULTANT’s percentage of fault shall be determined, as applicable, by a court of law, jury or arbitrator. In the event any loss, liability or damage is incurred by way of settlement or resolution without a court, jury or arbitrator having made a determination of the CONSULTANT’s percentage of fault, the parties agree to mediation with a third party neutral to determine the CONSULTANT’s proportionate percentage of fault for purposes of determining the amount of indemnity and defense cost reimbursement owed to the CITY.
(b) For All Other Liabilities. Notwithstanding the foregoing and without diminishing any rights of CITY, for any liability, claim, demand, allegation against CITY arising out of, related to, or pertaining to any act or omission of CONSULTANT, but which is not a design professional service, CONSULTANT shall defend, indemni fy, and hold harmless CITY, its officials, employees, and agents (“Indemnified Parties”) from and against any and all damages, costs, expenses (including reasonable attorney fees and expert witness fees), judgments, settlements, and/or arbitration awards, whether for personal or b odily injury, property damage, or economic injury, and arising out of, related to, any concurrent or contributory negligence on the part of the CITY, except for the sole or active negligence of, or willful misconduct of the CITY. (c) No Waiver. ClTY does not waive, nor shall be deemed to have waived, any indemnity, defense or hol d harmless rights under this section because of the acceptance by CITY, or the deposit with CITY, of any insurance certificates or policies described in Section 10.
10. INSURANCE
CONSULTANT shall, at CONSULTANT's sole cost and expense, provide insurance as described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating of A- or better, Class VI I or better, or as otherwise approved by CITY.
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
Insurance shall include the following (or broader) coverage:
a) Insurance Services Office Commercial Liability coverage “occurrence” form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000 general aggregate.
b) Insurance Services Office form number CA 00 01 or equivalent covering Automobile Liability, including hired and non-owned automobile liability with a minimum limit of $1,000,000 per accident. If the Service Provider owns no vehicles, this requirement may be satisfied by a non-owned and hired auto endorsement to Service Provider’s commercial general liability policy.
c) Workers’ Compensation insurance complying with California worker’s compensation laws, including statutory limits for workers’ compensation and an Employer’s Liability limit of $1,000,000 per accident or disease.
d) Professional liability insurance that covers the services to be performed in connection with this agreement, in the minimum amount of $1,000,000 per claim.
Liability insurance policies required to be provided by CONSULTANT hereunder shall contain or be endorsed to contain the following provisions:
a) Except for professional liability insurance, CITY, its employees, officials, agents and member agenc ies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the work performed or related to the contract. Additional insured status under the general liability requirement shall be provided on Insurance Services Office Form CG 20 10, with an edition date prior to 2004, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37, or its equivalent.
b) General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability. Coverage will not be limited to CITY’s vicarious liability.
c) Professional liability insurance policies inception date, continuity date, or retroactive date must be before the effective date of this agreement. CONSULTANT agrees to maintain continuous coverage
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
through a period no less than three years after completion of the services required by this agreement.
d) Except for professional liability insurance, liability coverage shall be primary and non-contributing with any insurance maintained by CITY.
e) Evidence of coverage (including the workers’ compensation and employer’s liability policies) shall provide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days’ prior written notice has been given to CITY.
Such provision shall not include any limitation of liability of the insurer for failure to provide such notice.
f) No liability insurance covera ge provided to comply with this AGREEMENT shall prohibit CONSULTANT, or CONSULTANT ’s
employees, or agents, from waiving the right of recovery prior to a loss. CONSULTANT waives its right of recovery against CITY.
g) CONSULTANT agrees to deposi t with CITY within fifteen days of Notice to Proceed of the Contract certificates of insurance and required endorsements.
h) There shall be no recourse against CITY for payment of premiums or other amounts with respect to the insurance required to be provided by CONSULTANT hereunder. Any failure, actual or alleged, on the part of CITY to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of CITY. CITY has no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this AGREEMENT does not comply with these requirements or is 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.
i) CONSULTANT agrees to provide immediate notice to CITY of any claim or loss against CONSULTANT arising out of the work performed under this AGREEMENT. CITY assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve CITY.
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
11. RELATIONSHIP OF CONSULTANT TO CITY
The relationship of the CONSULTANT to CITY shall be that of an independent contractor and that in no event shall CONSULTANT be considered an officer, agent, servant or employee of CITY. CONSULTANT shall be solely responsible for any workers compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the described work.
12. CORRECTIONS
In addition to the above indemnification obligations, CONSULTANT shall correct, at its expense, all errors in the work that may be disclosed during CITY's review of CONSULTANT's report or plan s. Should CONSULTANT fail to make such correction in a reasonably timely manner, such correction shall be made by CITY, and the cost thereof shall be charged to CONSULTANT or withheld from any funds due to CONSULTANT hereunder.
13. TERMINATION BY CITY
CITY, by notifying CONSULTANT in writing, may upon 10 calendar days notice, terminate without cause any portion or all of the services agreed to be performed under this AGREEMENT. If te rmination is for cause, no notice period need be given. In the event of termination, CONSULTANT shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by CITY to CONSULTANT within 30 days following s ubmission of a final statement by CONSULTANT unless termination is for cause. In such event, CONSULTANT shall be compensated only to the extent required by law.
14. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by CONSULTANT of the final payment made under this AGREEMENT shall operate as and be a release of CITY from all claims and liabilities for compensation to CONSULTA NT for anything done, furnished, or relating to CONSULTANT'S work or service s. Acceptance of payment shall be any negotiation of CITY's check or the failure to make a written extra compensation claim within 10 calendar da ys of the receipt of that check.
However, approval or payment by CITY shall not constitute, nor be deemed, a release of the responsibility and liability of CONSULTANT, its employees, subcontractors, agents and CONSULTANTs for the accuracy and competency of the information provided and/or work perf ormed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by CITY for any defect or error in th e work prepared by CONSULTANT, its employees, subcontractors, agents and consultants.
833
City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
15. AUDIT OF RECORDS
At any time during normal business hours and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with re spect to all matters covered by this AGREEMENT and will permit CITY to audit, examine and/or reproduce such records. CONSULTANT will retain su ch financial records, time sheets, work progress reports, invoices, bills and project records for at least two years after termination or final payment under this AGREEMENT.
16. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this AGREEMENT by the ot her party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the othe r party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written wai ver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under th is AGREEMENT, or at law or in equity, shall be cumulative and alternative, and inv ocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.
17. CONFLICT OF INTEREST
CONSULTANT is unaware of any CITY employee or official that has a financial interest in CONSULTANT'S bus iness. During the term of this AGREEMENT and/or as a result of being awarded this AGREEMENT, CONSULTANT shall not offer, encourage or accept any financial interest in CONSULTANT'S business by any CITY employee or official.
18. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this AGREEMENT shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties.
Wherever required by the context, the s ingular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
19. MITIGATION OF DAMAGES
In all situations arising out of this AGREEMENT, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
20. GOVERNING LAW
This AGREEMENT, and the rights and obl igations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.
Should litigation occur, venue shall be in Superior Court of Santa Barbara County.
21. NONDISCRIMINATION
The City reaffirms its ongoing commitm ent to equality in the conduct of City business, and prohibits any policy, p lan, program, custom or practice, including harassment, in the conduct of City business. No discrimination or discriminatory practice shall occur in eith er employment of persons for, or completion of, the work contemplated by this Agreement, when such discrimination is based on race, color, natio nal origin, or ancestry; religion; sex; gender, gender identity, gender expression, or gender transitioning status; physical disability, mental disability, me dical condition, or genetic information; marital or domestic partner status; citize nship status; age; sexual orientation; exercising a legally protected right to an employment leave of absence; status as a victim of domestic violence, sexual assault, or stalking; reproductive health decision-making, or any other classificati on protected under state or federal law.
Among other possible violations of law, a violation of this section exposes CONSULTANT to the penalties provided for in Labor Code Section 1735.
22. TAXPAYER IDENTIFICATION NUMBER
CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification , Form W-9 (Rev. October 2018), as issued by the Internal Revenue Service.
23. NON-APPROPRIATION OF FUNDS
Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY funds. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this AGREEMENT shal l cover only those costs incurred up to the conclusion of the current fiscal year.
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Public Works Department and Mark Thomas and Company, Inc.
24. MODIFICATION OF AGREEMENT
The tasks described in this AGREEMENT and all other terms of this AGREEMENT may be modified only upon mu tual written consent of CITY and CONSULTANT.
25. USE OF THE TERM “CITY”
Reference to “CITY” in this AGREEMENT includes City Manager or any authorized representative acting on behalf of CITY.
26. PERMITS AND LICENSES
CONSULTANT, at its sole expense, shall obtain and maintain during the term of this AGREEMENT, all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this AGREEMENT.
27. CAPTIONS
The captions or headings in this AGREEMENT are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the AGREEMENT.
28. AUTHORIZATION
Each party has expressly authorized the execution of this AGREEMENT on its behalf and bind said party and its respective administrators, officers, directors, shareholders, divisions, subs idiaries, agents, employees, successors, assigns, principals, partners, joint ventur ers, insurance carriers and any others who may claim through it to this AGREEMENT.
29. ENTIRE AGREEMENT BETWEEN PARTIES
Except for CONSULTANT'S proposal s and submitted representations for obtaining this AGREEMENT, this AGREEMENT supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services, and contains all of the covenants and agreements between the parties with respect to said services.
30. PARTIAL INVALIDITY
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenf orceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
31. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
TO CITY: Attention: Rober t Nisbet, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: Attention: Pat Somerville, PE
Mark Thomas and Company, Inc.
2121 Alton Parkway, Suite 210
Irvine, CA 92606
32. COUNTERPARTS AND ELECTRONIC/FACSIMILE SIGNATURES
This Agreement may be executed in several counterparts, which may be facsimile or electronic copies. Each counterpart is fully effective as an original, and together constitutes one and the same instrument.
In concurrence and witness whereof , this AGREEMENT has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
_____________________________ _____________________________ Robert Nisbet, City Manager Zach Siviglia, President
A T T E S T
_____________________________ _____________________________ Deborah Lopez, City Clerk Robert M. Brogan, Secretary
APPROVED AS TO FORM:
ISAAC ROSEN, ACTING CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
EXHIBIT A
SCOPE OF WORK
Task 1 – Management, Administration & Meetings
Provide overall management, administration and reporting for Mark Thomas. This task includes meetings with City and your design Consultant (Dewberry) staff. 10 virtual meetings are included.
Task 2 – Review of Current Project Materials
Mark Thomas will review all materials, including plans, studies and reports, from the most recent submittal made to the UPRR, including UPRR comments and City Consultant responses. This review will form the strategy for the resubmittal of materials and may require further revision to plans, reports, calculations and response to comments to ensure UPRR comments are property addressed. One field review, outside of the UPRR right of way, will be provided in this task to visit the project site to better ascertain the site conditions.
Task 3 – UPRR Coordination
Assume the role as the lead coordinator with the UPRR and function as the single point of contact. Provide coordination and review of all submittal materials prior to the Phase “C” (60% resubmittal) and Phase “D” (100%) submittals per the UPRR & BNSF Guidelines for Railroad Grade Separation Projects (Guidelines). Effort includes the coordination with the City’s design consultant, review of UPRR comments, and strategize and assist in development of responses. It is anticipated that multiple submittals at both the Phase “C” and “D” submittals will be required.
Upon final approval of the “D” submittal, will assist the City in the review of the UPRR Construction and Maintenance (C&M) agreement.
Task 4 – CPUC Coordination
Our efforts will include the review and coordination of the formal application for the new grade separated trail prepared by the City and/or Consultant, coordination with the CPUC staff, and participation in meetings and hearings.
838
City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
EXHIBIT B
RATE SCHEDULE
Sr. Engineering Manager
Technical Lead
Sr. Project Engineer
Sr. Project Accountant
Sr. Project Coordinator
Total
Hours
Total
Cost
Billing Rate: $380 $242 $200 $165 $154
UPRR/CPUC Coordination Services
1.0 Management, Administration, Meetings 12 6 12 30 $7,398
2.0 Review of Current Project Materials 6 4 8 18 $4,848
3.0 UPRR Coordination 34 8 40 82 $22,856
4.0 CPUC Coordination 8 16 24 $6,240
0 $0
Subtotal Phase 60 12 64 6 12 154 $41,342
TOTAL HOURS 60 12 64 6 12 154
OTHER DIRECT COSTS $658
TOTAL COST $22,800 $2,904 $12,800 $990 $1,848 $42,000
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City of Goleta
Public Works Department and Mark Thomas and Company, Inc.
Mark Thomas & Company Rate Sheet
Staff/Project Role Hourly Rate
Sr. Engineering Manager $380
Engineering/Design Manager $312
Sr. Project Manager/Technical Lead $270
Project Manager/Technical Lead $242
Sr. Project/Technical Engineer $200
Project Engineer $173
Design Engineer II $147
Design Engineer I $121
Sr. Project Accountant $165
Sr. Project Coordinator $154
Reimbursables will be invoiced at cost.
840