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CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF GONZALES AND EMC
PLANNING GROUP FOR PREPARATION OF CEQA/NEPA DOCUMENTS
FOR THE COMMUNITY CENTER COMPLEX PROJECT
THIS AGREEMENT for consulting services is made by and between the City of Gonzales ("City") and EMC Planning Group ("Consultant") (together sometimes referred to as the "Parties") as of February 7, 2022 (the "Effective Date").
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on December 30, 2023 and Consultant shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as referenced in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $50,000, notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person.
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Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
Serial identifications of invoices; i.e., Invoice No. 1 for the first invoice, etc.; The beginning and ending dates of the billing period; A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion;
A copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and any reimbursable expense;
The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder;
Consultant shall give separate notice to the City when the total number of hours worked by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours within a 12-month period under this Agreement and any other agreement between Consultant and City. Such notice shall include an estimate of the time necessary to complete work described in Exhibit A and the estimate of time necessary to complete work under any other agreement between Consultant and City, if applicable.
2.2 Monthly Payment. City shall make payments, based on submitted invoices, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 <<Not Used>>
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, Consulting Services Agreement between
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unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment.
2.5 Hourly Fees. Fees for work performed by Consultant shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B.
2.6 Reimbursable Expenses. Reimbursable expenses are included in the total authorized compensation provided under this Agreement.
Mark-up for subconsultants and other outside direct costs shall not exceed 7.50%.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement.
Section 4. INSURANCE REQUIREMENTS. Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors.
Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work to the City.
Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence that such insurance is in effect to City.
Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers' Consulting Services Agreement between
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Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than $1,000,000 per accident. In the alternative, Consultant may rely on a selfinsurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an "occurrence" basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001, Code 1 (any auto). No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
b. City, its officers, officials, employees, and volunteers are to be covered as insureds as respects: liability arising out of work or operations performed by or on behalf of the Consultant; or automobiles owned, leased, hired, or borrowed by the Consultant.
c. For any claims related to this Agreement or the work hereunder, the Consultant's insurance covered shall be primary insurance as respects Consulting Services Agreement between
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the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
d. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days' prior written notice has been provided to the City.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 covering the licensed professionals' errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant shall purchase an extended period coverage for a minimum of five years after completion of work under this Agreement.
d. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement.
4.3.3 Additional Requirements. A certified endorsement to include contractual liability shall be included in the policy.
4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII.
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4.4.2 Verification of coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete copies of all policies delivered to Consultant by the insurer, including complete copies of all endorsements attached to those policies. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Consultant beginning work, it shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time.
4.4.3 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4.4.4 Wasting Policies. No policy required by this Section 4 shall include a "wasting" policy limit (i.e., limit that is eroded by the cost of defense).
4.4.5 Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to affect this waiver of subrogation.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the consultant, its employees, agents, and subcontractors.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach:
Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
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Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall, to the fullest extent allowed by law, with respect to all Services performed in connection with this Agreement, defend with counsel acceptable to City, indemnify, and hold City, its officers, employees, agents, and volunteers, harmless from and against any and all claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, ("Claims"). Consultant will bear all losses, costs, damages, expense and liability of every kind, nature and description that arise out of, pertain to, or relate to such Claims, whether directly or indirectly ("Liability"). Such obligations to defend, hold harmless and indemnify the City shall not apply to the extent that such Liabilities are caused by the sole negligence, active negligence, or willful misconduct of the City.
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any type of express or implied indemnity against the Indemnitees.
Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by California Civil Code section 2783, as may be amended from time to time, such duties of Consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
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7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant's Failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
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Consultant may cancel this Agreement upon 30 days' written notice to City and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or
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8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement.
It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
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10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Monterey or in the United States District Court for the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant.
Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
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10.9 Contract Administration. This Agreement shall be administered by the City Public Works Director, ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his/her designee.
10.10 Notices. Written notice to Consultant shall be sent to:
Teri Wissler Adam, Senior Principal
EMC Planning Group
301 Lighthouse Avenue, Suite C
Written notice to City shall be sent to:
Mary Villegas, Administrative Specialist/Deputy City Clerk City of Gonzales
P.O. Box 647 / 147 Fourth Street
Gonzales, CA 93926
10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example.
_________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, [[and]C[, and D]] [ENSURE THAT THE CORRECT EXHIBITS ARE LISTED] represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.
Exhibit A Scope of Services
Exhibit B Fee Estimate
Exhibit C City Council Resolution
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
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10.14 Non-Responsibility for General Contractor Responsibilities and Duties. Unless otherwise agreed by City and Consultant in writing, nothing in Consultant's services shall be construed to mean that Consultant assumes any of the contractual responsibilities or duties of the general contractor. The general contractor is solely responsible for construction means, methods, sequences and procedures used in the construction of a project and for related performance in accordance with its contract with the City. The general contractor shall not be relieved of its responsibility for the safety of the workplace or for the method or manner of construction. The Consultant and its personnel have no authority to exercise any control over or charge of acts or omissions of the general contractor or their employees in connection with the construction work.
The Parties have executed this Agreement as of the Effective Date.
CITY OF GONZALES EMC PLANNING GROUP
René L. Mendez, City Manager Teri Wissler Adam, Senior Principal Attest:
Mary Villegas, Deputy City Clerk
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EXHIBIT A
SCOPE OF SERVICES
.
Proposal 2-1 EMC Planning Group
Gonzales Community Center Complex CEQA/NEPA Compliance January 2022
2.0 Technical Approach
2.1 Approach and Methodology
EMC Planning Group has conducted a preliminary review of the proposed project, the existing environmental setting at the project site, and the documentation provided with the RFP. It appears that the proposed project is likely categorically exempt from CEQA and would qualify for a categorial exclusion under NEPA and the U.S. Housing and Urban Development (HUD) NEPA guidance. Preparation of a CEQA initial study is not necessary in order to determine if a project is categorically exempt from CEQA. The appropriate documentation is presented in the scope of work. Should our detailed analysis identify an impact that would not allow the CEQA exemption and/or the NEPA exclusion, a scope and budget amendment may be necessary.
CEQA
The proposed project appears to qualify for the Class 32 In-Fill Development Project categorical exemption pursuant to CEQA Guidelines section 15332. It states:
Class 32 consists of projects characterized as in-fill development meeting the conditions described in this section.
(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.
(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) The project site has no value as habitat for endangered, rare or threatened species.
(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.
(e) The site can be adequately served by all required utilities and public services.
In addition to the requirements above, the following exceptions must not apply to the project or the project site, pursuant to CEQA Guidelines section 153002, Exceptions. (a) Location. Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located – a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant.
Proposal 2-2 EMC Planning Group
Gonzales Community Center Complex CEQA/NEPA Compliance January 2022 Therefore, these classes are considered to apply [sic] all instances, except where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.
(b) Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant.
(c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. (d) Scenic Highways. A categorical exemption shall not be used for a project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway. This does not apply to improvements which are required as mitigation by an adopted negative declaration or certified EIR.
(e) Hazardous Waste Sites. A categorical exemption shall not be used for a project located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code.
(f) Historical Resources. A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource.
The tasks in Section 2.2, Scope of Work, below include the necessary evaluation, documentation, and findings for the Class 32 categorical exemption.
NEPA
The proposed project likely also qualifies for a Categorical Exclusion under NEPA. The U.S.
Housing and Urban Development (HUD) NEPA guidance will be used, which consists of preparing HUD’s Environmental Assessment Checklist and Environmental Assessment Worksheet. This template is included as Attachment A of this proposal.
Technical Report Revisions
As presented earlier, several technical analysis documents were prepared for the previously-proposed 28,500 square foot project. The proposed size is now 33,414 to 35,414 square feet. The following existing reports are sufficient for use in the CEQA/NEPA process without any modifications:
Gonzales Community Center Geotechnical Investigation, Kleinfelder, July 20, 2012; Gonzales Community Center Phase I Environmental Site Assessment, Rincon Consultants, July 9, 2012;
Proposal 2-3 EMC Planning Group
Gonzales Community Center Complex CEQA/NEPA Compliance January 2022 Gonzales Community Center Phase II Environmental Site Assessment, Rincon Consultants, April 30, 2013; and
Gonzales Community Center Project Photometric Lighting Study, Rincon Consultants, January 2013.
EMC Planning Group proposes additional analysis to address noise and transportation due to the increase size of the proposed project. The following existing reports would be used; however, additional analysis would be provided to address the increase in the proposed square footage. Gonzales Community Center Project Acoustical Study, Rincon Consultants, April 2013; and New Community Center Development, Gonzales, CA – Traffic and Parking Analysis Technical Memorandum, Wood Rodgers, December 7, 2012.
The following scope of work is proposed.
2.2 Scope of Work
The following scope of work is proposed. All documents will be provided electronically.
Project Management
This task includes project management tasks, including but not limited to, client consultation (City staff, Swinerton Management & Consulting, the program and construction manager), consultation with HUD staff as required to fully comply with CEQA/NEPA requirements, subconsultant management, administration, etc.
This task includes up to eight hours of meetings and/or telephone conferences with City staff and Swinerton Management & Consulting.
Technical Documentation
Transportation Evaluation
CEQA and the HUD NEPA checklist require consideration of transportation impacts. Hexagon Transportation Consultants will conduct a transportation study, focusing on the evaluation of vehicle miles traveled (VMT) and updating the trip generation and parking assessment in the 2012 Wood Rodgers technical memorandum.
Historically, traffic impact analysis has focused on the identification of traffic impacts and potential roadway improvements based on delays to relieve traffic congestion that may result due to proposed/planned growth. However, with the adoption of Senate Bill (SB) 743 legislation, public agencies are required (effective July 2020) to base transportation impacts on VMT rather than level of service that typically uses delay as its metric. The change in measurement is intended to better evaluate the effects on the state’s goals for climate change and multi-modal transportation.
Proposal 2-4 EMC Planning Group
Gonzales Community Center Complex CEQA/NEPA Compliance January 2022 Therefore, this scope of services provides an assessment of the project’s potential impacts related to adopted VMT methodologies and impact criteria as required per the Governor’s Office of Research and Planning (OPR) Technical Advisory guidance on the evaluation of transportation impacts in CEQA. Since the City of Gonzales has yet to adopt VMT impact criteria or thresholds, the VMT assessment will consider OPR’s guidelines and recommendations for the evaluation of VMT. This scope does not include operational analysis, including peak hour intersection level of service analysis, which was completed as part of previous studies for the project.
The OPR guidelines provide recommendations for screening thresholds that lead agencies may use to quickly identify when a project should be expected to result in a less-than-significant VMT impact and a VMT analysis is not required. The screening criteria consider types, characteristics, and/or locations of projects. The project as proposed would likely meet OPR’s recommended screening criteria for VMT analysis exemption and allow for the determination that the proposed project would have a less than significant impact on the transportation system per the CEQA guidelines.
Therefore, the VMT assessment will consist of a review of the proposed project based on the recommended VMT screening criteria provided in OPR’s Technical Advisory to determine applicability to the proposed project. The following tasks will be completed as part of the VMT:
Estimate of Project Generated Trips. Daily and peak hour site-generated vehicular traffic for the proposed project will be estimated utilizing trip rates provided by the Institute of Transportation Engineers (ITE) Trip Generation manual. This scope does not include the collection of additional trip generation data, such as driveway counts. Assessment of VMT Screening. Since the OPR screening criteria are not directly applicable to the proposed uses, the proposed community center will be converted to equivalent retail/commercial use for the purpose of the VMT assessment. The conversion to equivalent retail/commercial space will be based on a comparison of estimated daily trips for the proposed community center against that of retail/commercial uses. Parking. The project’s off-street parking requirements will be determined based on the City of Gonzales’ Zoning Code. Parking management strategies will be developed if necessary. Technical Memorandum. The VMT assessment will be summarized within a technical memorandum. The OPR screening recommendations and applicability to the proposed project will be described. Hexagon will prepare a final memorandum that address all comments received from City staff.
Environmental Noise Assessment
Both CEQA and NEPA require consideration of a proposed project’s noise impacts.
WJV Acoustics will conduct an environmental noise analysis consisting of the following tasks.
Proposal 2-5 EMC Planning Group
Gonzales Community Center Complex CEQA/NEPA Compliance January 2022 Conduct a project site inspection to evaluate the acoustical characteristics of the project site and surrounding area, note the locations of nearby noise‐sensitive receptors and identify existing noise sources in the project area. Conduct ambient noise monitoring at representative locations throughout the project vicinity that could have potential noise‐related conflicts as a result of the proposed project. It is anticipated that continuous 24‐hour ambient noise measurements will be conducted at up to two (2) locations using automated noise monitors and that short‐term sampling of ambient noise levels will be conducted at up to six (6) additional sites. Analyze potential project‐related changes in roadway traffic noise exposure along roadways near or adjacent to the project site. Calculations will be performed using the FHWA Highway Traffic Noise Prediction Model and traffic data to be obtained from the project traffic engineer or other sources as may be appropriate. Compare project‐related changes in traffic noise exposure to applicable noise level standards and other thresholds of significance. Evaluate potential noise impacts from the project including 1) noise levels from existing noise sources as they may affect proposed project, and 2) noise levels resulting from development of the project as they may affect existing noise‐sensitive uses in the project area. This task will include consideration of exterior and interior noise exposure. Quantify noise and vibration levels that would likely occur during construction of the project as they could affect nearby existing or planned noise‐sensitive receptors. Identify nearby existing or planned noise‐sensitive receptors that could be subjected to noise or vibration levels in excess of applicable noise standards or CEQA thresholds as a result of the project construction. Prepare recommendations for noise mitigation as may be required to reduce significant noise impacts to less‐than‐significant. Significance will be based on City of Gonzales noise standards and the CEQA Guidelines criteria. Identify any significant project‐related noise impacts that cannot be reasonably mitigated.
Prepare a written technical report summarizing the methods, data, findings and recommendations for noise mitigation of the study.
Biological Resources Analysis
Although the project site was previously developed, is highly disturbed, and is surrounded by urban development, a biological resources analysis is necessary to document the setting and confirm that the project site has no value as habitat for endangered, rare or threatened species. The following tasks will be completed by an EMC Planning Group biologist. Compile and review available project information, including preliminary site plans and aerial photographs. Conduct a review to determine the special-status species that have been recorded as occurring within the general project vicinity based on current database searches of California Department of Fish and Wildlife’s California Natural Diversity Database (CNDDB), the California Native Plant Society (CNPS) Rare and Endangered Plant Proposal 2-6 EMC Planning Group
Gonzales Community Center Complex CEQA/NEPA Compliance January 2022 Inventory, the US Fish and Wildlife Service (USFWS) Endangered Species Program, the U.S. Fish and Wildlife Service National Wetlands Inventory (NWI); and other biological studies conducted in the vicinity of the project site, if available. Complete a reconnaissance-level field survey to (1) identify and map the principal plant communities; (2) assess the potential for special-status species and their habitats, wildlife movement corridors, potentially jurisdictional wetlands and waterways, regulated trees, and other significant biological resources to occur; and (3) identify and map any observed locations of special-status species and/or habitats. Plant and wildlife species observed during the survey will be recorded in field notes.
Prepare the biological resources memo, describing existing habitats and plant and animal species found on the project site, and the occurrence of and/or potential for special-status species and their habitats. If needed, one or more figures will be prepared to illustrate habitat types and the location(s) of special-status species occurring on or in the vicinity of the project site. Potential impacts to biological resources will be identified, and mitigation measures will be provided to minimize potential impacts, when possible, if necessary.
Note: Focused surveys for specific plant and/or animal species are not included in this proposed scope of work. The presence or absence of certain species can be determined during the reconnaissance-level site assessment. If appropriate habitat for other sensitive species is observed during the site assessment, species-specific surveys may be required (i.e., surveys for annual plants not in bloom at the time of the reconnaissance-level survey, protocol-level surveys for special-status wildlife species, etc.). Species-specific survey requirements will be determined based on the results of the reconnaissance-level site assessment.
Cultural Resources Analysis
The purpose of the cultural resources report is to document the known presence of historic resources and/or unique archaeological resources. The following tasks will be completed by an EMC Planning Group archaeologist.
Review available background research including site plans, maps, and aerial photographs, and conduct a search of the National Register of Historic Places, an archival search of the database of the California Historical Resources Information System affiliated with the California Office of Historic Preservation for the project boundary, and a Sacred Lands search with the Native American Heritage Commission, to determine if any known archaeological, historical, Sacred Sites, or Tribal Cultural Resources are recorded on or within a quarter mile of the project boundary.
Conduct a reconnaissance-level archaeological pedestrian survey of the property to determine if surface indicators of historic or prehistoric archaeological resources are Proposal 2-7 EMC Planning Group
Gonzales Community Center Complex CEQA/NEPA Compliance January 2022 present. The presence of surface materials, such as shell fragments, groundstone, or debitage (lithic waste flakes), could indicate additional subsurface prehistoric or historic archaeological resources.
Prepare a letter report that describes the methodology used to conduct the survey, relevant historical and ethnographic contextual information, maps of the area, pertinent photographs, the results from the Sacred Lands search, and a summary of the results from the archival and field research. The report will identify the environmental and regulatory setting, including the likelihood of project impacts to potentially significant prehistoric or historic archaeological resources.
Air Quality Analysis
Our preliminary review indicates that the proposed project would not result in significant air quality impacts; however, this needs to be verified. The Monterey Bay Air Resources District (air district) provides direction for air quality analysis. The following scope of work is consistent with the air district’s available direction for air quality analysis.
Emissions Modeling
Run the California Emissions Estimator Model (CalEEMod) to calculate the change in criteria air pollutant based on proposed conditions and trip generation information from the traffic impact analysis. Construction and operational emissions will be modeled. This task includes review of the project description and information to identify proposed sources of air pollutants and to develop the model data inputs. Up to two model runs will be conducted to quantify the net criteria pollutant attributable to the project during construction and operations (baseline and project). Assumptions and methodology will be presented in a technical memorandum.
Air Quality Analysis
The proposed project could result in an increase in criteria air pollutant emissions during operations, primarily through new vehicle trips generated by the proposed project. The proposed project could also result in construction-related air quality impacts.
The following tasks will be completed:
Conduct a consistency analysis to determine if the proposed project is consistent with the applicable air quality management plan;
Describe the physical and climatological characteristics of the air basin, existing air pollutant conditions, and health effects of air pollutants;
Review current air district documents, policies, and regulatory requirements applicable to the proposed project;
Proposal 2-8 EMC Planning Group
Gonzales Community Center Complex CEQA/NEPA Compliance January 2022 Compare modeled criteria air pollutant emissions results to the air district’s impact thresholds to determine if the proposed project would result in significant impacts from criteria air pollutant emissions;
Identify project sources of hazardous air pollutants or odors and health risks associated with them, as well as any existing or planned nearby sensitive receptors that could be affected; and If necessary, mitigation measures that represent “Best Management Practices” to control construction dust or particulate matter emissions, including equipment exhaust emissions, would be identified.
Water Quality Analysis
A memorandum will be prepared to address water quality impacts associated with the proposed project. No formal technical analysis is necessary for this evaluation. This will be addressed based upon the general plan, general plan EIR, and the City code regarding water quality.
Categorical Exemption Findings
Prepare the necessary findings to support a categorical exemption addressing CEQA Guidelines section 15332, Infill Development Projects, and section 15300.2, Exceptions, as presented in the Approach and Methodology section above.
Prepare a notice of exemption and file with the County Clerk and the State Clearinghouse.
HUD’s Environmental Assessment Checklist and Environmental Assessment Worksheet Prepare the HUD Environmental Assessment Checklist and Environmental Assessment Worksheet form.
Optional Tasks
IS/MND and EA/FONSI. After completion of the evaluation tasks above, if it is determined that an initial study/MND and environmental assessment/FONSI is required, this documentation can be prepared. A cost for this optional task is included on the budget spreadsheet.
Public Hearing. EMC Planning Group can attend public hearings if desired by staff. A cost for this optional task is included on the budget spreadsheet.
Consulting Services Agreement between
City of Gonzales and EMC Planning Group Exhibit B Page 1 of 1 1168358
EXHIBIT B
FEE ESTIMATE
Task
Staff Senior Principal Principal Associate Planner Reg. Prof. Archaeologist Principal Biologist Associate Biologist Graphics Production Manager Billing Rate (Per Hour) $250.00 $225.00 $150.00 $125.00 $190.00 $130.00 $95.00 $125.00Project Management 16.0 0.0 8.0 0.0 0.0 0.0 0.0 2.0 26.0 $5,450.00Technical Documentation Environmental Noise Assessment Management 0.0 0.0 2.0 0.0 0.0 0.0 0.0 0.0 2.0 $300.00 Transportation Evaluation Management 0.0 0.0 2.0 0.0 0.0 0.0 0.0 0.0 2.0 $300.00 Biological Resources Analysis 1.0 0.0 0.0 0.0 4.0 24.0 0.0 0.0 29.0 $4,130.00 Cultural Resources Analysis 2.0 0.0 0.0 24.0 0.0 0.0 0.0 0.0 26.0 $3,500.00 Air Quality Analysis 0.0 24.0 0.0 0.0 0.0 0.0 0.0 0.0 24.0 $5,400.00Water Quality Analysis 0.0 0.0 8.0 0.0 0.0 0.0 0.0 0.0 8.0 $1,200.00CEQA Exemption Findings 2.0 0.0 8.0 0.0 0.0 0.0 0.0 0.0 10.0 $1,700.00HUD Environmental Assessment Checklist and Worksheet 2.0 8.0 0.0 0.0 0.0 16.0 0.0 0.0 26.0 $4,380.00Planning Commission (1 hearing) 6.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 6.0 $1,500.00Subtotal (Hours) 29.0 32.0 28.0 24.0 4.0 40.0 0.0 2.0 Total Hours Total CostSubtotal (Cost) $7,250.00 $7,200.00 $4,200.00 $3,000.00 $760.00 $5,200.00 $0.00 $250.00 159.0 $27,860.00 Additional Costs
Production CostsTravel CostsPostal/DeliverablesMiscellaneous (NWIC and CNDDB)Administrative Overhead 7.5%Total Subconsultant Fees
Hexagon Transportation ConsultantsWJV AcousticsSubconsultant Overhead 7.5%Total Total CostsOPTIONAL TASKS
NOTE: This proposal is valid for 90 days
$5,000.00$5,650.00
$40,179.50
$798.75
$11,448.75
$550.00$870.75
$60.75$50.00
$185.00
$25.00
1. Initial Study/MND and Environmental Assessment/FONOSI (if necessary) $10,0002.Additional Public Hearings $1,600 Gonzales Community Center Complex CEQA/NEPA Compliance Budget EMC Planning Group Inc.
Total Cost Total Hours
Consulting Services Agreement between
City of Gonzales and EMC Planning Group Exhibit C Page 1 of 1 1168358
EXHIBIT C
CITY COUNCIL RESOLUTION