Agenda packet — Milpitas City Council, January 23, 2024 (part 2 of 5)

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___ Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Contractor or Consultant, regardless of where the vehicles are kept or driven.

Professional Liability (Errors and Omissions):

_X__ Insurance appropriates to the Contractor or Consultant’s profession, wit h limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate.

___ (If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate.

___ Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than ______ per occurrence or claim, ______ aggregate

Workers’ Compensation Insurance:

_X__ Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000.00 per accident for bodily injury or disease. (Not required if Contractor or Consultant provides written verification it has no employees)

The Employer’s Liability policy shall be endorsed to waive any right of subrogation as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Builder’s Risk (Course of Construction):

___ Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtaine d that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

Contractor’s or Consultant’s Pollution Legal Liability:

___ Contractor’s or Consultant’s pollution legal liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000.00 per occurrence or claim and $2,000,000.00 policy aggregate.

If the Contractor or Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor or Consultant. Any available insurance proceeds in excess of the speci fied minimum limits of insurance and coverage shall be available to City.

Cyber Liability Insurance

___ Cyber Liability Insurance with limits not less than $1,000,000 per claim.

Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Contractor or Consultant in this Agreement and shall include, but not be limited to, claims involving infringement of

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intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security.

The policy shall provide coverage for breach response costs as well as regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations.

Surety Bonds:

Contractor shall provide the following Surety Bonds:

____ Bid Bond
____ Performance Bond
____ Payment Bond

The Payment Bond and Performance Bond shall be in a sum equal to the contract price. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.

Other Insurance Provisions:

The insurance policies are to contain, or be endorsed to contain the following provisions:

_X__ Additional Insured Status and Primary/Non-Contributory Language:

Contractor’s general liability and automobile liability policies shall be primary and shall not seek contribution from the City’s coverage and be endorsed to add the City and its elected and appointed officials, officers, attorneys, agents employees and volunteers as additional insureds under such policies using Insurance Services Office form CG 20 10 (or equivalent) on the general liability policy. For construction projects, an endorsement providing completed operations coverage for the additional insured on the general liability policy, ISO form CG 20 37 (or equivalent), is also required.

The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

___ Loss Payee Status – Builder’s Risk/Course of Construction Insurance (applicable to Construction Contracts only)

Contractor or Consultant may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.

_X__ Notice of Cancellation, Suspension or Otherwise Voiding Policies:

Each insurance policy requi red above shall contain or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City.

_X__ Waiver of Subrogation:

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Contractor or Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor or Consultant may acquire against the City by virtue of the payment of any loss under such insurance.

Contractor or Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Co mpensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Contractor or Consultant, its employees, agents and subcontractors.

___ Completed Operations

For Construction Agreements, Contractor shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following the completion of this project. In the event Contractor fails to obtain or maintain completed operations coverage as required by this Agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by Contractor.

THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS

Deductibles and Self-Insured Retentions (“SIR”):

Any deductibles or self-insured retentions must be declared to and approved by City. The City may require the Contractor or Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected and appointed officials, offic ers, attorneys, agents, and employees; or (2) the Contractor or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability.

Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City.

City reserves the right to obtain a full -certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers:

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to City.

Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract of work.

3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Contractor or Consultant

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must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability Policy shall not con tain lead -based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Subcontractors:

Contractor or Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.

Subcontractor agrees to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement and any other contract documents. Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub -subcontractor to the extent they apply to the scope of the sub - subcontractor’s work. A copy of the City indemnity and insurance provisions will be furnished to the subcontractor upon request.

Verification of Coverage:

Contractor or Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor or Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Special Risks or Circumstances

City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.

Failure to Comply:

Each insurance policy required above shall contain or be endo rsed to contain that any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Applicability of Coverage:

Each insuranc e policy required above shall contain or be endorsed to contain that the Contractor’s or Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

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Exhibit E

[CONSULTANTS EXCECUTION PLAN ON FOLLOWING PAGE]

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Impact Sciences, Inc. 1 On-Call Environmental Consulting Services September 15, 2023 Statement of Qualifications for the City of Milpitas

EXECUTION PLAN
Detailed Work Plan
Impact Sciences effectively manages the environmental process for both public and private projects. Part of effective project management includes the development of communication and project management protocols which are implemented in coordination with our clients at the outset of every project. These protocols help to outline the process for communication, schedules, and document review procedures. Below is a general description of our technical and management approach to addressing the environmental needs of the City’s future projects.

Technical Approach to CEQA Review & Compliance
Task 1: Project Management
Kickoff Meeting. Impact Sciences will attend one (1) kick-off meeting with City staff. Our team will prepare an agenda for the kick -off meeting and a draft schedule for review. The kick -off meeting will include a discussion of the p roject description, baseline, objectives, and scope of the environmental documents . Impact Sciences will prepare meeting minutes and a revised schedule and distribute to the team. Typical objectives of the kick-off meeting are as follows:
a. Outline project description for the project;
b. Identify City objectives for the CEQA process;
c. Establish communication protocols;
d. Identify areas of potential controversy;
e. Obtain/identify relevant schedules, plans, technical reports, and studies applicable to the p roject; and f. Finalize the preliminary project schedule and discuss review periods and key milestones.

Project and Community Meetings. To ensure constant communication, the team will attend project team meetings with City staff, as well as Planning Commission and City Council meetings.

Task 2: Site Investigation, Data Collection, and Review Impact Sciences will work with the City to obtain the necessary p roject details, including scope and timeline to determine the appropriate CEQA path for each p roject. Background information including zoning and land use designations, applicant supplied technical studies, and existing environmental conditions will be reviewed. Our team will provide the City with a data needs list to facilitate information sharing.

Task 3: Project Description
The project description forms the basis of the environmental analysis and therefore an accurate and detailed project description must be completed at the outset of any environmental review process to ensure the completeness and legality of the CEQA document. The project description will be prepared in accordance with the State CEQA Guidelines.

We anticipate City staff or the project applicant will provide the necessary data to include in the project description, specifically a description of the timeline, objectives, and proposed improvements .

Task 4: Administrative Draft Environmental Document
As part of this task, Impact Sciences will review existing project information, including available technical reports and design documents. Impact Sciences will prepare one (1) fully documented draft for the proposed p roject, pursuant to the State CEQA Guidelines . To ensure that the p roject is viewed in the proper context, complete descriptions of the existing site conditions and current and planned use of the site will be provided. This is important because CEQA requires the proposed project to be compared to the existing environmental conditions to determine the significance of the project. Impact Sciences will coordinate one (1) round of comment and revisions with City staﬀ on the administrative draft environmental document.

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Impact Sciences, Inc. 2 On-Call Environmental Consulting Services September 15, 2023 Statement of Qualifications for the City of Milpitas Task 5: Screencheck Draft Environmental Document
Having addressed all comments on the administrative draft, Impact Sciences will provide a camera -ready draft of the environmental documents in PDF format, including any graphic representations and maps. For this task, Impact Sciences will facilitate one (1) round of revisions to the screencheck draft, if necessary, and prepare a draft document for public review.

Task 5: Draft Environmental Document
Impact Sciences will prepare and circulate the Draft EIR for the required public review period (typically 45 days). Our team will prepare the Notice of Completion and file the notice with the County Clerk and the State Clearinghouse. If necessary, our team can assist with additional mailing. During the comment period, our team can attend a hearing on the project if requested.

Task 6: Final Environmental Document
Impact Sciences will review all comments received during a public review period and prepare draft written responses to these comments. Please note that the time necessary to complete this task is highly dependent on the number of comments received. Impact Sciences will prepare the Final document and a Notice of Determination (NOD), if required, incorporating any changes and input from C ity staﬀ review. We will distribute the NOD to the State Clearinghouse, as required by CEQA. The City will be responsible for posting the NOD with the County Clerk.

Task 7: CEQA Training Presentation
As requested, Impact Sciences will provide a CEQA training presentation to the Milpitas City Council and the Planning Commission once during the contract period, at no cost to the City of Milpitas. We are experienced with providing straight forward, easy to follow presentations regarding the CEQA process. Our Managing Principal Jessica Kirchner has experience holding a one-day training seminar for Los Angeles Metro, City College of San Francisco (CCSF) and the City of Compton. Seminars can provide an overvi ew and history of CEQA and NEPA, and then move into guidelines for preparing Categorical Exemptions/Exclusions, Initial Studies, and Mitigated Negative Declarations. Our technical staﬀ also provides in -house staﬀ trainings in the form of “lunch and learn ” opportunities where one person presents on a topic.

Management Approach
Commitment of Resources
Efficient management will be ensured through coordination with City staff and the project management systems in place at Impact Sciences. Our overall workload planning program is designed to ensure that sufficient resources are available to project manager s to successfully complete projects on schedule and within budget. Impact Sciences ’ system has been designed to match the needs of the complex interdisciplinary projects typically managed by our firm.

Our emphasis on proper organization of a new project from the beginning is the key to meeting project budgets and schedules.

We are committed to providing access to the principals and project managers through the course of the entire project.

Impact Sciences offers the expertise of senior staff to provide the City with sound consulting advice along with staff at all levels to provide cost-effective consulting services. Any significant change for unplanned circumstances in our team will be discussed with City staff prior to any staff changes. Our commitment to this approach has resulted in successful performance on a wide variety of assignments and long-term relationships with our public-sector clients.

Quality Control
Impact Sciences believes that a quality -control program is an essential component of a work plan. Quality of project deliverables entails technical accuracy, internal document consistency, conformance to the City’s methodology for

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Impact Sciences, Inc. 3 On-Call Environmental Consulting Services September 15, 2023 Statement of Qualifications for the City of Milpitas assessing impacts, and graphic and grammatical presentation of the document. Key elements of the Impact Sciences quality-control program include assigning highly experienced technical and professional staff to each project and maintaining communication with each staff member assigned to a particular project through the entire process.

Impact Sciences’ routine quality control includes a principal review of data interpretation and analytical methods. The project manager typically reviews work products in progress and compiles all completed products in accordance with internal deadlines. Once the document is compiled, the principal then reviews the conclusions and recommendations of the document against the quality -control standards mentioned above and provides final approval prior to delivery to the client. This stepped method allows for the review of the documents by management positions during different periods of completion and allows us to provide our client with a quality product.

Impact Sciences’ staff is committed to providing a level of analysis that ensures comprehensive and legally defensible environmental documents. Our intent is always to prepare an environmental document that contains substantial factual evidence for its conclusions regarding the significance of impacts and the effectiveness of mitigation.

Budget Tracking
Impact Sciences uses a firm-wide project cost tracking system (V antagepoint) that provides for easy access by project managers and staff to monitor project status. The V antagepoint system provides for accounting, billing, and planning integrated into a single database. The project manager can access project costs data through a variety of reports and interactive computer pages. Our project administration staff (billing and accountin g) can work independently of the project manager in tracking and accruing co sts, while the project manager can simultaneously project and monitor future project tasks.

The project manager reviews and approves all time costs weekly and is responsible for reviewing and approving all subcontracting and subconsultant invoices. All project time and costs are posted daily so that a real -time synopsis of project information is available. V antagepoint also provides for project schedule s to be integrated with costs. Each project’s phase and tasks are allocated by week or month.

Additionally, Impact Sciences will achieve effective cost control through our accounting system , Vantagepoint. Our progressive web-based project accounting system accurately tracks labor charges, subcontractor costs (if applicable), and other direct expenses and accounts receivable. Real time data in Vantagepoint allows the project manager to assess incurred costs as soon as they are entered into the system , and the embedded planning tool will allow project managers to plan hours, resources, and costs into the future to understand potential cost overruns and communicate these items before they are realized.

Scheduling, Task Management, and Collaboration
Impact Sciences is committed to maintaining City schedules and meeting deadlines. We use an internal project management software, Monday.com (see inset below) to track project progress, schedules, and deliverables.

Monday.com allows for team communication, allowing the project manager to see the status of project tasks from anywhere. The best way to ensure a successful project is to establish communication protocols early on . Monday.com keeps our team on schedule and allows for daily communication of delive rables and expectations.

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MASTER SERVICES AGREEMENT

BETWEEN THE

CITY OF MILPITAS AND FIRSTCARBON SOLUTIONS

This Agreement is made and entered into as of (“Effective Date”) by and between the City of Milpitas, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”), and FCS International, Inc. dba FirstCarbon Solutions a California corporation with its principal place of business at 250 Commerce, Suite 2 10, Irvine, CA 92602 (hereinafter referred to as “Consultant”).

City and Consultant are sometimes individually referred t o as “Party” and collectively as “Parties” in this Agreement.

RECITALS

A. City is a public agency of the State of California and is in need of professional services for the following project:

On-Call Environmental Services
(hereinafter referred to as “the Project”).

B. Contractor submitted its qualifications to City to provide On-Call Environmental Services services on an as-needed basis and is one of several Consultants selected by City to provide services.

C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services.

Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit A.

2. Compensation.

a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the rates set forth in the Schedule of Charges set forth in Exhibit B.

b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Million Dollars and Zero Cents ($1,000,000.00) . This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within thirty (30) days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis.

3. Additional Work.

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performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.

4. Maintenance of Records.

Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the Agreement term and for four (4) years from the date of final payment under the Agreement for inspection by City.

5. Term.

The term of this Agreement shall be from the Date first written above to December 15, 2027, unless earlier terminated as provided herein. The City reserves the right to review the Consultant’s performance at the end of each year and cancel all or part of the Agreement.

6. Delays in Performance.

a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non -performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.

b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.

7. Compliance with Law.

a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements.

b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.

c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.

8. Standard of Care.

Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions.

9. Assignment and Subconsultant.

Consultant shall not assign, sublet, transfer, or subcontract this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination.

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10. Independent Consultant.

Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. However, notwithstanding the foregoing and/or anything to the contrary herein, City agrees to provide or to require a party other than Consultant to provide a safe worksite and working conditions while Consultant’s personnel and equipment are on the subject jobsite(s). Failure to do so affords Consultant, at its own choosing, the ability to either a) terminate the contract with three (3) calendar days notice or b) cease work on any project(s)/site(s) at anytime FCS identifies unsafe conditions until said conditions are remedied and either option shall be acceptable to and honored by City without penalty and with payment for services rendered prior to termination or cessation of work taking effect.

11. Insurance.

Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under Exhibit D (Insurance Requirements), attached hereto and incorporated herein by this reference. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required therein.

12. Indemnification.

a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any man ner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if an y, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.

b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate t o the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

13. California Labor Code Requirements.

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its officials, officers, employees and a gents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all Ca lifornia Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations.

Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.

14. Verification of Employment Eligibility.

By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.

15. Laws and Venue.

This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Santa Clara, State of California.

16. Termination or Abandonment.

a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. City shall pay Consultant for all work performed prior to the effective date of termination.. City shall not be liable for any costs associated with termination other than the payment for work performed as specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.

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c. The Consultant understands and accepts that at all times; the Agreement is subject to appropriation of funds by the Milpitas City Council. The Agreement may terminate without penalty, liability or expense of any kind to the City at the end of Agreement term. The City has no obligation to make appropriations for the Agreement in lieu of appropriations for new or other contracts. City budget decisions are subject to the discretion of the Mayor and City Council. Consultant’s assumption of risk of possible non-appropriation is a part of the consideration for the Agreement. This section controls against any and all other provisions of the Agreement.

17. Documents.

Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.

18. Organization.

Consultant shall assign Rose Walsh as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

19. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

20. Notice.

Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:

CITY:

City of Milpitas
455 E. Calaveras Boulevard
Milpitas, California 95035
Attn: Jay Lee, Planning and Neighborhood Services
Director
CONSULTANT:

FirstCarbon Solutions
250 Commerce, Suite 210
Irvine, CA 92602
Attn: Jason Brandman, Vice President

and shall be effective upon receipt thereof.

21. Third Party Rights.

Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.

22. Equal Opportunity Employment.

Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.

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23. Entire Agreement.

This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any ot her agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.

24. Severability.

The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.

25. Successors and Assigns.

This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

26. Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

27. Time of Essence.

Time is of the essence for each and every provision of this Agreement.

28. City’s Right to Employ Other Consultants.

City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.

29. Prohibited Interests.

Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct in terest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

30. Wage Theft Prevention.

a. Consultant, and any subconsultant it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance.

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b. BY SIGNING THIS AGREEMENT, CONSULTANT AFFIRMS THAT I T HAS

DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN THE FIVE (5) YEARS PRIOR TO

EXECUTING THIS AGREEMENT THAT CONSULTANT OR ITS SUBCONSULTANTS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. CONSULTANT FURTHER AFFIRMS

THAT IT OR ITS SUBCONSULTANT(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,

DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS NOT BEEN FULLY

SATISFIED, CONSULTANT AFFIRMS THAT IT OR ITS SU BCONSULTANT(S) IS CURRENTLY

SATISFYING SAID JUDGMENT, DECISION OR ORDER THROUGH A PAYMENT OR ALTERNATIVE

PLAN APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGENCY AND THAT

CONSULTANT OR ITS SUBCONSULTANT(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.

c. If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that Consultant or a subconsultant it employs to perform work under this Agreement ha s violated any applicable wage and hour law, or Consultant learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Consultant shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order. Consultant or its subconsultant(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment , decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Consultant or its subconsultant is subject to a payment or other alternative plan, the Consultant or its subconsultant shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.

d. For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.

e. Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement and/or law.

f. Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E.

Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.

[SIGNATURES ON FOLLOWING PAGE]

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SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE

CITY OF MILPITAS AND FIRSTCARBON SOLUTIONS

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF MILPITAS
Approved By:

FIRSTCARBON SOLUTIONS
Approved By:

Ned Thomas, City Manager Signature

Date

Approved As To Form:

Name
________________________________________________

Title
______________________________________________________
Michael Mutalipassi, City Attorney

Approved: Date

Approved:

__________________________________________-
Signature

___________________________________________
Name

___________________________________________
Title

___________________________________________
Date

Lauren Lai, CPA, MPA
Finance Director / Risk Manager
Approved As To Content:

______________________________________________
Jay Lee, Planning and Neighborhood Services
Director

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EXHIBIT A

Scope of Services

In accordance with the California Environmental Quality Act (CEQA), the City of Milpitas has adopted the CEQA Guidelines as its procedures for the review of development projects and other activities to ensure that the environment of the State is protected and enhanced. Pursuant to these procedures, the City anticipates that the preparation of environmental document(s) will be required for potential future projects.

The Contractor will provide a variety of professional services and prepare environmental documents (such as Environmental Impact Reports, Mitigated Negative Declarations, Negative Declarations, Initial Studies, and/or technical studies) in compliance with the requirements of CEQA as well as the National Environmental Policy Act (NEPA).

Typical environmental impacts which will need to be assessed include but are not limited to:

• Aesthetics
• Air Quality
• Climate Change/Global Warming
• Geology and Soils
• Hydrology and Water Quality
• Mineral Resources
• Population and Housing
• Recreation
• Utilities and Service Systems
• Agricultural Resources
• Biological Resources
• Cultural Resources
• Hazards and Hazardous Materials
• Land Use and Planning
• Noise
• Public Services
• Transportation/Traffic
• Cumulative Impacts

The Contractor will provide the following:

A. Assist City staff in managing the environmental processing for private development projects and City initiated projects, including preparation of environmental documents, attendance at public meetings, regular interface with City of Milpitas staff and other City consultants, and attendance at regularly scheduled coordination meetings as necessary when work is in progress.

B. Communicate and coordinate with specialized environmental consultants and City staff and other City consultants as necessary.

C. Provide a full range of environmental consulting services capable of meeting the needs of any given private development or City initiated project.

D. Provide the management of multiple projects and competing priorities while maintaining quality, meeting schedules and staying within budget.

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E. Sub-consultants may be utilized for various technical reports. The City reserves the right to require the use of approved sub-consultants, particularly with respect to traffic/transportation reports, and not permit the use of sub-consultants that have not been approved; and
F. Provide CEQA training presentation to the Milpitas City Council and the Planning Commission once during the contract period, at no cost to the City of Milpitas.

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EXHIBIT B

Schedule of Charges/Payments

Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out - of-scope work being performed by Consultant. This is a time-and-materials Agreement.

In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Million Dollars and Zero Cents ($1,000,000.00).

[Contractor Rate Sheets on Following Page]

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Statement of
Qualifications

PROPOSED COMPENSATION
Compensation is based on the following fee schedule and charges.

FCS Personnel Hourly Labor Rate
President $320–$340
Director/Vice President $270–$320
Legal Counsel $220–$260
Associate Director/Senior Team Leader $220–$250
Senior Project Manager/Senior Scientist/Senior Regulatory Scientist $190–$220 Project Manager/Scientist/Regulatory Scientist $140–$190 Assistant Project Manager/Assistant Scientist/Assistant Regulatory Scientist $120–$140 Environmental Analyst/Technical Analyst/Regulatory Analyst $90–$120 Senior Graphic Designer/GIS Manager $150–$210
Graphic Designer/GIS/CADD Specialist $110–$150
Publications Coordinator/Technical Editor $110–$150
Word Processor $95–$130
Archaeological/Paleontological Monitor I/II $95–$130
Archaeological/Paleontological Monitor III $130–$160
Biological Monitor I/II $95–$130
Biological Monitor III $130–$160
Reprographics Assistant/Intern $70–$90
Administrative Assistant/Accounting/Clerical $70–$110

Other Labor Rates
Labor rates for expert testimony, litigation support, and depositions/court appearances will be billed at a minimum of two times the above rates. If additional services are authorized during the performance of a contract, compensation will be based on the fee schedule in effect at the time the services are authorized.

Direct Expenses
Direct costs and out-of-pocket expenses are billed as follows:

1. Out-of-pocket expenses, including, but not limited to, travel, messenger service, reprographics, lodging, meals, blueprint, reproduction, and photographic services: Cost, as charged to FCS, plus a 10 percent administrative fee.

2. Subcontractors’ fees: Cost, as charged to FCS, plus a 10 percent administrative fee.

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Statement of
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3. Passenger Cars: $0.655 per mile.

4. Four-wheel-drive vehicles: $95.00 per day plus $0.655 per mile.

5. Records checks: Fees vary by facility and project.

6. Museum curation: Fees vary by city and project.

7. Cultural resources storage/curation of fossil and artifact collections: Cost, as charged to FCS, plus a 10 percent administrative fee.

8. Per Diem: Fees charged at the USA Federal (GSA) Rate. Lodging surcharge may apply in high-rate areas.

9. US Fish and Wildlife Service (USFWS)/CDFW impacts or mitigation fees: Cost, as charged to FCS, plus a 10 percent administrative fee.

Terms
Compensation and direct expenses are invoiced monthly and payable upon receipt or as codified in project-specific contract.

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EXHIBIT C

Activity Schedule

[RESERVED]

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EXHIBIT D

INSURANCE REQUIREMENTS
Please refer to the insurance requirements listed below. Those that have an “X” indicated in the space before the requirement apply to Contractor’s or Consultant’s Agreement.

Contractor or Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor or Consultant, its agents, representatives, employees or subcontractors.

Contractor or Consultant shall provide its insurance broker(s)/agent(s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all required endorsements.

Contractor or Consultant shall furnish City with copies of original endorsements affecting coverage required by this Exhibit D. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to require Contractor’s or Consultant’s insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the co verage required by these specifications.

Commercial General Liability (CGL):

Coverage at least as broad as Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the genera l aggregate limit shall be twice the required occurrence limit.

_X Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Automobile Liability:

_X Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), of if Contractor or Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000.00 combined single limit for bodily injury and property damage.

Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limits no less than $5,000,000.00 combined single liit for bodily injury and property damage.

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Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Contractor or Consultant, regardless of where the vehicles are kept or driven.

Professional Liability (Errors and Omissions):

_X Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate.

(If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate.

Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than per occurrence or claim, aggregate

Workers’ Compensation Insurance:

_X Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000.00 per accident for bodily injury or disease. (Not required if Contractor or Consultant provides written verification it has no employees)

The Employer’s Liability policy shall be endorsed to waive any right of subrogation as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Builder’s Risk (Course of Construction):

Insurance utilizing an “All Risk” (Special Perils ) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

Contractor’s or Consultant’s Pollution Legal Liability:

Contractor’s or Consultant’s pollution legal liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000.00 per occurrence or claim and $2,000,000.00 policy aggregate.

If the Contractor or Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor or Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Cyber Liability Insurance

Cyber Liability Insurance with limits not less than $1,000,000 per claim.

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intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic info rmation, release of private information, alteration of electronic information, extortion, and network security.

The policy shall provide coverage for breach response costs as well as regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations.

Surety Bonds:

Contractor shall provide the following Surety Bonds:

Bid Bond
Performance Bond
Payment Bond

Other Insurance Provisions:

The insurance policies are to contain, or be endorsed to contain the following provisions:

_X Additional Insured Status and Primary/Non-Contributory Language:

Loss Payee Status – Builder’s Risk/Course of Construction Insurance (applicable to Construction Contracts only)

_X Notice of Cancellation, Suspension or Otherwise Voiding Policies:

Each insurance policy required above shall contain or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City.

_X Waiver of Subrogation:

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Contractor or Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Contractor or Consultant, its employees, agents and subcontractors.

Completed Operations

THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS

Deductibles and Self-Insured Retentions (“SIR”):

Any deductibles or self-insured retentions must be declared to and approved by City. The City may require the Contractor or Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees; or (2) the Contractor or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability.

Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City.

City reserves the right to obtain a full -certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers:

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to City.

Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor or Consultant

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must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability Policy shall not contain lead -based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Subcontractors:

Verification of Coverage:

Special Risks or Circumstances

City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.

Failure to Comply:

Each insurance policy required above shall contain or be endorsed to contain that any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Applicability of Coverage:

Each insurance policy required above shall contain or be endorsed to contain that the Contractor’s or Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

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Exhibit E

[CONSULTANTS EXCECUTION PLAN ON FOLLOWING PAGE]

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Statement of
Qualifications

EXECUTION PLAN
General Approach to Providing Environmental Consulting Services FirstCarbon Solutions’ (FCS’s) goal is to provide cost-effective, technically sound, and legally defensible environmental consulting and documentation services to our municipal clients. To this end, we emphasize frequent, informal communication with the City and prepare concise verbal and written summaries of project information that can be readily shared with project participants and City staff. Our firm’s management style of “No Surprises” means that if we encounter a challenge or constraint, we will immediately notify the City and be prepared to provide proven, short- and/or long-term strategies for remedying any situation we encounter, including emergencies and delays. Our project management philosophy revolves around an infrastructure of effective communication and problem-solving acumen, and the repeat business we receive from our municipal clients is a result of our focused customer service philosophy.

To effectively manage the California Environmental Quality Act (CEQA) and National Environmental policy Act (NEPA) processes, FCS will work with City staff to leverage previously prepared environmental documentation with the collection of new, detailed environmental data necessary to analyze a project pursuant to CEQA and/or NEPA requirements. Our approach facilitates the development of a comprehensive impact analysis while streamlining the environmental compliance process, which saves our clients time and money.

FCS encourages our municipal clients to integrate environmental considerations early in the project planning and design process so that environmental opportunities and constraints can be taken into account in the project design. Our experience has shown that by proactively incorporating environmental and permitting considerations into the project at the earliest feasible time (i.e., conceptualization, design, and planning phases), project proponents can reduce and, in some instances, eliminate the need for additional regulatory permits that can add months or even years to project completion schedules and substantially increase project costs. Our approach also prevents “scope creep,” which often occurs when project designs change after technical studies have been completed.

FCS is also unique in that we employ an in-house legal counsel who assists our management team in preparing legally defensible documents that can withstand public scrutiny and potential legal challenge.

Each of these attributes is essential to FCS’s success.

Developing Project Description and Context
One of the most important factors in preparing a legally defensible environmental document is having a complete and accurate understanding of the proposed project/action prior to initiating environmental analyses or review. Taking the time to fully describe “the whole of an action” can result in significant time and cost savings for our clients. Further, initiating technical studies or environmental analyses at the appropriate time eliminates the need to backtrack and duplicate/redo field efforts or technical analyses due to new or changed project circumstances. FCS will assist the City in defining the precise location and boundaries of all of the components, facilities, and associated infrastructure required to construct and operate a proposed project. FCS will also assist the City in identifying opportunities to keep projects

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Statement of
Qualifications

moving forward despite uncertainties. For example, if a specific utility alignment is not yet known, the FCS team can evaluate a much larger area in the field to provide flexibility in the project design while allowing the environmental studies to proceed.

Conducting Preliminary Environmental Compliance Review
FCS’s proposed approach to preparing environmental documentation is a reflection of our cumulative experience dealing with the preparation of documentation for every type of project. After conducting a preliminary environmental compliance review to determine whether a project is subject to CEQA and/or NEPA, FCS then considers whether a Statutory or Categorical Exemption may apply, and we evaluate whether a project is eligible to utilize or “stack” one or more of the applicable CEQA streamlining provisions.

For example, actions that are consistent with zoning (but that still require discretionary approvals) may utilize the streamlined review/CEQA exemption under Public Resources Code Section 21083.3 and CEQA Guidelines 15183, which state that a certified Environmental Impact Report (EIR) for a planning or zoning action may be used to eliminate, or to reduce the scope of, environmental review for later development projects that are consistent with the planning or zoning action. Section 21083.3 applies when a parcel has been zoned, or designated in a community plan, to accommodate a particular density of development, and an EIR was certified for that planning or zoning action. Section 21083.3 also applies when an EIR was certified for a general plan and a development project is consistent with the plan.

Similarly, CEQA Section 15332 provides for an exemption from review under CEQA for projects characterized as infill development and that meet specific criteria. During the project initiation stage, FCS will meet with City staff to discuss the project specifics and to confirm whether any unusual circumstance would disqualify a project from consideration under CEQA Section 15332.

CEQA does not have any specific procedures for when it is determined that an exemption applies, so the City would follow their usual procedures for finding a CEQA Exemption is applicable. If a project appears to meet all criteria, FCS can prepare a simple Notice of Exemption (NOE) for the City’s review, or we can prepare supporting technical studies that affirm the applicability of the exemption. While there is no requirement that a lead agency must respond to comments on an exemption finding, it is very good practice to do so and one that FCS recommends. Once the action is approved, the NOE should be filed with the County to start the 30-day statute of limitations.

Preparing Initial Studies/Environmental Assessments
When it is determined a project/activity is subject to CEQA and/or NEPA and no Statutory or Categorical Exemptions/Exclusions apply, FCS may recommend to the City to prepare an Initial Study and/or Environmental Assessment (IS/EA) to determine whether an EIR or Environmental Impact Statement (EIS) needs to be prepared, or a Negative Declaration (ND), Mitigated Negative Declaration (MND), and/or a Finding of No Significant Impact is the appropriate level of documentation. In certain instances, we know early on that a proposed activity will have the potential to significantly impact the environment and that preparation of an EIR/EIS will be required. In these cases, depending upon the project circumstances, FCS can either bypass the preparation of an IS/EA and immediately proceed with

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Qualifications

preparing the EIR/EIS, or we can determine that is still beneficial to prepare an IS/EA in order to focus an EIR/EIS on only those potentially significant effects.

Preparing EIRs/EISs
When there is substantial evidence a proposed project or activity may have significant impacts on the environment, FCS provides the technical capabilities and expertise necessary to assist our clients in preparing an EIR, EIS, or joint EIR/EIS, including, but not limited to:

• defining the project description;
• identifying project stakeholders and creating/maintaining a mailing list; • preparing the Notice of Preparation (NOP) and providing a 30-day review period; • conducting public scoping;
• preparing supporting technical reports and an Administrative Draft EIR for internal review; • preparing and circulating the Public Draft EIR for a 45-day review period; • drafting responses to comments received in response to the Draft EIR; • preparing a Final EIR, including responses to comments, a Mitigation Monitoring and Reporting Program (MMRP), and an executive summary; and
• preparing Findings of Fact and, if necessary, a Statement of Overriding Considerations to support a lead agency’s final decision on the project.

When NEPA compliance is required, minor changes to the terminology and review timelines would be necessary.

Preparing Technical Studies
Depending on the project, there may be a need to initiate technical studies to support the environmental analyses and/or engineering feasibility studies. FCS has extensive experience in conducting initial site assessments and preparing air quality/GHG emissions assessments, noise assessments, health risk assessments, biological resources assessments, cultural/historical resources assessments, and other technical reports, as required. For each project that we undertake for the City, FCS will manage our team of technical specialists and provide any billing detail and reporting to the City.

Handling Public Input Processes and the Presentation and Dissemination of Public Information for Review/Comment
FCS will help the City ensure that responses to public comments received on the environmental documents are complete and adequate for purposes of CEQA and/or NEPA. We can assist the City in preparing robust community outreach plans that include ongoing public engagement opportunities, or we can simply attend public hearings either to answer questions on the City’s behalf or present our findings to the decision-making body. Should any additional/new public comments or general opposition be raised at

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these meetings and hearings, FCS’s management team can assist the City in appropriately responding to these comments. FCS has selected a qualified team with strong written, graphic, and verbal skills to accommodate the City’s needs in developing, providing, and presenting information and materials to all project stakeholders in both formal and informal settings.

Ensuring Compliance with Processing and Legal Requirements FCS regularly prepares CEQA/NEPA documentation for highly controversial projects, and we have established an excellent record of legal defensibility for environmental documents we prepare. We exercise particular care to ensure that FCS’s environmental documents contain thorough environmental analyses and explicitly document all data sources and research contacts. This approach reduces the potential for successful legal challenge and assists lead agencies in preparing the administrative record, when so required. FCS’s staff is experienced in conducting environmental documentation for controversial projects, and we have developed research and documentation techniques that minimize avenues for legal challenge. FCS’s in-house legal counsel regularly monitors CEQA and NEPA court decisions and CEQA and NEPA Amendments to keep FCS Managers abreast of legal precedents and compliance issues. FCS Project Managers are well versed in the various processing requirements that apply to specific types of environmental documentation, including minimum circulation periods, distribution and noticing requirements, and processing timelines. FCS also adheres to a rigorous quality assurance/quality control (QA/QC) process that is described in greater detail below.

Managing Quality Control
FCS’s system of quality control involves every step in the preparation of technical studies and environmental documents. The first step in our process involves ensuring consistency among technical studies and related deliverables. Upon project initiation, all team members are provided with a copy of the agreed-upon scope of work, allowing every individual involved with the project to have the same understanding of the required work products, the content of the work products, and the prevailing schedule/budget constraints. FCS also strives to develop the CEQA or NEPA project description as early in the process as possible and to secure approval by the applicant and lead agency prior to initiating the bulk of the technical analyses. This allows us to provide a consistent project description and supporting project graphics in all of our technical work products. During the environmental compliance process, FCS’s management team coordinates all activities related to QA/QC, including multiple reviews of project documents to ensure legal defensibility, technical accuracy, and objectivity. In addition, FCS’s Project Directors commit to not only reviewing the “final product” but also to conducting a thorough review of all technical data and studies used to support our documents’ findings and conclusions. This ensures that all of FCS’s findings are accurate and properly incorporated. Prior to submitting documents to outside parties (applicants, lead agencies, clients, etc.), FCS’s environmental documents also undergo a legal sufficiency review that is conducted by our in-house legal counsel. This additional step helps ensure that FCS’s documents are legally defensible and reflect leading-edge environmental documentation standards and compliance practices.

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Statement of
Qualifications

Controlling Costs and Adhering to Established Schedules FCS’s project management team utilizes a powerful suite of scheduling tools designed for real-time planning and environmental data storage that serves to make the CEQA/NEPA process more efficient and less costly. FCS Project Managers are responsible for project cost management with support from FCS’s internal job-cost accounting system, the Deltek Vision Financial Management software (Vision)—a fully automated web-based project management system that allows FCS project managers to access up-to- date information regarding all project phases. The immediate availability of accurate project data allows for maximum project budget control down to the individual task level. With this tool, FCS can facilitate early participation with the agencies tasked with reviewing project issues, permits, licenses, and/or opinions, and substantially reduce the time and cost of communication between agencies. Scope tasks and fees can be queried into any level of subcategories desired to assess to-date expenditures and project the utilization and adherence to task budgets. Vision also provides a valuable communication and reporting tool that allows project managers to remain informed and flexible if the need to redistribute task funds becomes apparent during project implementation. FCS’s Project Managers conduct monthly contract review to monitor budget conformance with the completion percentage reported by the job-cost system. Finally, a senior management team, including the FCS Controller and the Project Manager, conducts a post-contract completion audit to determine if the conditions of the contract and client needs were met.

FCS also utilizes Smartsheet to track estimated labor hours to support accurate scheduling and workflow for all staff. The Smartsheet system is updated and reviewed weekly, and is updated daily (when needed) to accurately track project progress. Smartsheet also allows all involved parties in the project to interact, contribute, and receive full automated notifications for key dates and milestones. Another tool that FCS uses is Microsoft Teams, an online meeting tool that allows us to collaborate and interact with our clients on multiple formats. Team’s screen share function is particularly useful during the project delivery process, and meetings can be recorded and added to the Administrative Record, if/as necessary. Full use of these resources substantially reduces the time and cost of communication between agencies. On more complex assignments, FCS utilizes Microsoft Project for developing, charting, and tracking project milestones, critical due dates, critical path tasks, and subconsultant progress. FCS’s project management approach, coupled with our use of state-of-the-art technology, will keep the City informed of real-time critical project information, which makes our project implementation more efficient and less costly.

Maintaining a Successful Record of Legal Defensibility
FCS has often been involved in preparing the environmental analyses for difficult and controversial projects that have been subjected to legal challenges both during the approval stage and within the California Court system. FCS has a superior record of legal defensibility in its documents, including projects brought before the State Supreme Court, and has often been called on to “fix” documents prepared by others that the Courts have found to be deficient. Building on our successful record of legal defensibility, FCS has forged new standards and protocols for analysis that have been upheld by the California Court of Appeals—standards that are now being utilized by other consulting firms. While litigation cannot always be avoided, FCS has never been terminated or required to settle as a result of civil or criminal judgment. FCS’s strict adherence to regulatory content and processing requirements

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assists agencies in deflecting litigation whenever possible. Our adherence to legal requirements and technical adequacy is further bolstered by FCS’s QA/QC and peer review processes and an in-house legal team that has substantial experience in environmental litigation with cities, counties, and agencies in California. Megan Starr, JD, FCS’s Legal Counsel and a successful CEQA litigator, will provide oversight to ensure that the environmental review conducted for the City’s projects is sufficient and legally defensible.

SAMPLE SCOPES OF WORK
Our approach to preparing EIRs and Initial Studies/Mitigated Negative Declarations (IS/MNDs) has been developed through 40 years of experience working with cities and counties in California to produce thoughtful, defensible environmental documents in a timely manner. All deliverables would undergo review by a technical lead, Project Manager, Project Director, and document Editor. Over the course of a project, the Project Manager would coordinate with the agency representative to provide updates and exchange information. Monthly progress reports and schedule updates would also be provided. Our standard Scopes of Work (Scopes) in preparing EIRs and IS/MNDs are outlined below:

Sample Scope for EIRs (or EIS if NEPA is involved) with Technical Studies

Task Staffing

1. Preparation of Scope. Upon receipt of a task request, the FCS Project Manager will coordinate with the agency representative to obtain sufficient project information to define the nature, scale, and context of the project.

The FCS Project Manager will then coordinate with FCS specialists and subconsultants to identify the environmental approach and develop a Scope and fee for the project.

Project Director
Project Manager

2. Project Initiation and Preparation of Project Description. Upon approval of the Scope, the FCS Project Manager will coordinate a kick-off meeting and work with agency representative to obtain any additional information to define the project footprint, complete the project description, obtain sufficient data to conduct technical studies, and confirm the project schedule and agency expectations.

Project Director
Project Manager

3. Internal and External Kick-off Meetings and Preparation of Technical Studies. The FCS Project Manager will hold an internal kick-off meeting to share project information and convey the project schedule and expectations.

The FCS Project Manager will also hold an external kick-off meeting with City staff and the applicant team, as appropriate. FCS will then provide the City with a Request for Information (RFI) to gather all project data and, upon receipt of that information, prepare the technical studies to comply with the requirements of CEQA and/or NEPA if applicable.

Project Director
Project Manager
Technical Teams
Subconsultants

4. Scoping and Noticing. FCS will prepare an NOP in accordance with CEQA Guidelines Section 15082. The NOP will identify the project location, provide a summary of the project characteristics, and list probable environmental effects, supported by tables and color graphics. Following the release of the NOP, FCS representatives will attend the public scoping meeting.

Project Director
Project Manager

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Task Staffing

5. Preparation of Draft EIR (or EIS if NEPA is involved). FCS will prepare an Administrative Draft, Screencheck Draft (which is a track change version of the document), and a EIR (or EIS) document . Upon receipt of comments from the agency on any draft deliverables, the FCS Project Manager will coordinate with the agency to ensure that comments are fully resolved, prior to resubmittal of a revised document. If needed, a comment resolution meeting or conference call will be scheduled with the agency and technical specialists to further inform comment resolution. The Draft EIR (or EIS) will then be released for a 45-day public review period.

Project Director
Project Manager
In-house Legal Counsel
Technical Teams
Publications Team

6. Preparation of Final EIR (or Final EIS and Record of Decision). FCS will prepare the Final EIR, which will provide written responses to public comments. FCS will prepare an Administrative Final EIR, a Screencheck Final EIR, and a Final EIR. Upon receipt of comments from the agency on any draft deliverables, the FCS Project Manager will coordinate with the agency to ensure that comments are fully resolved prior to resubmittal of a revised document. If needed, a comment resolution meeting or conference call will be scheduled with the agency and technical specialists to further inform comment resolution. FCS will then provide the Final EIR to the City. If NEPA is involved, FCS will prepare the Final EIS and Record of Decision.

Project Director
Project Manager
Technical Teams
Publications Team

7. Preparation of Findings of Facts/Statement of Overriding Considerations and MMRP. FCS will prepare the Findings of Facts/Statement of Overriding Considerations and an MMRP. A Statement of Overriding Considerations would only be necessary if the EIR determined a project would result in a significant and unavoidable impact. The MMRP will contain all mitigation measures identified in the Draft EIR, providing City staff with a single source of reference to the full range of mitigation measures to be implemented to ensure the achievement of the impact avoidance envisioned in the EIR.

Project Director
Project Manager
In-house Legal Counsel

8. Preparation of Notices and Attendance at Public Hearings. In coordination with the agency representative, FCS will also provide support for public notice, outreach, and meetings, including public hearing support.

Project Director
Project Manager

Sample Schedule for EIRs / EIS with Technical Studies
FCS can typically complete an EIR (or EIS if NEPA is involved) within eight to 12 months under an expedited schedule and within 12 to 18 months under a ‘normal’ preparation schedule. In the sample schedule below, we have provided an aggressive but feasible schedule for the preparation of a comprehensive EIR and associated technical studies in less than nine months.

Task Week
Receive City Comments on Project Description/Draft NOP 6 Release NOP for Public Review (30 days) 7
Conduct Scoping Meeting 9
End of Review Period for NOP 11

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Task Week
Complete Technical Studies 111
Submit Administrative Draft EIR to the City 14
Receive City Comments on Administrative Draft EIR 17
Address City Comments and Submit Screencheck Draft EIR 19 Receive City Comments on Screencheck Draft EIR 20
Submit Draft EIR to the City 21
Issue Draft EIR for Public Review/Begin 45-day Public Review Period 22 End 45 Day Public Review Period 29
Receive City Comments on Administrative Final EIR 33
Address City Comments and Submit Screencheck Final EIR 35 Receive City Comments on Screencheck Final EIR 36
Submit Final EIR to the City 37
Submit Draft Findings of Fact and MMRP 37
Receive City Comments on Draft Findings of Fact and MMRP 38 Submit Final Findings of Fact and MMRP 39
Planning Commission Hearing TBD
City Council Hearing TBD
File NOD with County Clerk’s Office Within 5 Day of Project Approval
1 Preparation of technical studies begins after FCS receives all requested information and data from the City and/or Applicant and the City has deemed the traffic analysis complete.

Sample Scope for IS/MNDs with Technical Studies

Task Staffing

The FCS Project Manager will then coordinate with FCS specialists and subconsultants to identify the environmental approach and develop a Scope and fee for the project.

Project Director
Project Manager

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Task Staffing
Description will also include a description of the purpose and need for the project.

FCS Project Manager will also hold an external kick-off meeting with City staff and the applicant team, as appropriate. FCS will then provide the City with an RFI to gather all project data and, upon receipt of that information, prepare the technical studies to meet the requirements of CEQA, and NEPA, if applicable.

Project Director
Project Manager
Technical Teams
Subconsultants

4. Preparation of Draft IS/MND (or EA if NEPA is involved). FCS will then draft the IS/MND. For an IS/MND (or EA), FCS typically prepares an Administrative Draft, a Screencheck Draft, and a publication Draft. Upon receipt of comments from the agency on any draft deliverables, the FCS Project Manager will coordinate with the agency to ensure that comments are fully resolved prior to resubmittal of a revised document. If needed, a comment resolution meeting or conference call will be scheduled with the agency and technical specialists to further inform comment resolution. The Draft IS/MND (or EA) will then be released for a 30-day public review period.

Project Director
Project Manager
In-house Legal Counsel
Technical Teams
Publications Team

5. Preparation of Final IS/MND (or FONSI / ROD if NEPA is involved). Though the preparation of a Final IS/MND is not required by CEQA, FCS recommends public agencies provide this document to the public. FCS would draft the Final IS/MND, which would provide written responses to public comments. FCS will prepare an Administrative Final IS/MND and Final IS/MND. FCS can also prepare a Screencheck IS/MND upon request. Upon receipt of comments from the agency on any draft deliverables, the FCS Project Manager will coordinate with the agency to ensure that comments are fully resolved, prior to resubmittal of a revised document. If needed, a comment resolution meeting or conference call will be scheduled with the agency and technical specialists to further inform comment resolution. FCS will then provide the Final IS/MND to the City. If NEPA is involved, FCS will prepare the Finding of No Significant Effect (FONSI) and the Record of Decision (ROD) for review by the City and applicable federal agency.

Project Director
Project Manager
In-house Legal Counsel
Technical Teams
Publications Team

6. Preparation of MMRP. The MMRP would contain all mitigation measures identified in the Draft IS/MND, providing City staff with a single source of reference to the full range of mitigation measures to be implemented to ensure the achievement of the impact avoidance envisioned in the IS/MND.

Project Manager

7. Preparation of Notices and Attendance at Public Hearings. In coordination with the agency representative, FCS will also provide support for public notice, outreach, and meetings, including public hearing support.

Project Director
Project Manager

Sample Schedule for IS/MNDs (or EA if NEPA is involved) with Technical Studies FCS can complete a typical IS/MND (or EA) within six to eight months, although we have completed “fast- track” IS/MNDs within three months under an expedited schedule. In the sample schedule below, we

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have provided an aggressive but feasible work schedule for the preparation of an IS/MND and associated technical studies in less than six months.

Task Week
Authorization to Proceed/Project Initiation Meeting 1
Submit Project Description to the City 2
Receive City comments on/Finalize Project Description 3 Complete Technical Studies 61
Prepare and Submit Administrative Draft IS/MND 7
Receive City Comments on Administrative Draft IS/MND 9
Address City comments and Submit Screencheck IS/MND 11
Receive City Comments on Screencheck IS/MND 12
Submit Draft IS/MND to the City 13
City Approval of Draft IS/MND 14
Begin 30-day Public Review Period 14
Close 30-day Public Review Period 18
Prepare Administrative Final IS/MND (Responses to Comments) and MMRP for City Review 20
City Review of Administrative Final IS/MND and MMRP 21
Submit Final Versions of Response to Comments and MMRP 22 Planning Commission Hearing TBD
City Council Hearing TBD
File NOD with County Clerk’s Office Within 5 Day of Project Approval
1 Preparation of technical studies begins after FCS receives all requested information and data from the City and Applicant team and City has deemed the traffic analysis complete.

WORK SAMPLES
FCS is extremely proud of our ability to assist our clients with a wide variety of environmental consulting services. In addition to the Execution Plan, we have uploaded the PDF versions of the Draft EIR, Final EIR, and MMRP documents for the following projects:

• 2023–2031 (6th Cycle) Housing Element Update Program EIR, City of Pleasanton, CA • Oak Hill Apartments Project EIR, Marin County, CA

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ANALYTICAL RESOURCES
FCS utilizes a number of software to effectively and efficiently provide quality environmental analyses.

Our technical specialists are knowledgeable and skilled in operating these applications.

Air Quality, Greenhouse Gas Emissions, and Noise/Traffic Modeling FCS uses the following software for the Air Quality, GHG Emissions, and Traffic Modeling Analyses required in environmental documents:

• Air Quality and GHG Emissions Software: EMFAC2017, CalEEMod Version 2016.3.2, OFFROAD, AERMOD, CALRoads View, CAL3QHCR, and CALINE4

• Noise/Traffic Modeling Software:

- Traffic Noise Modeling (TNM): FHWA RD-77-108, FHWA TNM 2.5, and SoundPLAN 8.1; - Construction noise modeling: FHWA Roadway Construction Noise Model (RCNM) and SoundPLAN 8.1; and
- Railroad noise modeling: Federal Railroad Administration (FRA) Create Rail Noise Model, FRA train horn noise model, and SoundPLAN 8.1
Mapping, Graphic Design, and Visual Simulations
FCS provides a full suite of visual analysis services, including scenic impact analyses (per local, State, and federal methodologies), viewshed analyses, visual simulations, shade and shadow analyses, perspective renderings, 3-D modeling, walkthroughs, flythroughs, and animations to support projects through the design iteration and approval processes. FCS uses the following software for mapping and visual simulations:

• SketchUp + Podium
• AutoCAD
• Computer-aided Design and Drafting (CADD)
• Esri ArcGis Desktop, ArcGIS Server, ArcGIS Online, ArcMap Desktop, and ArcPad Mobile, as well as several ArcGIS extensions, including Xtools, Spatial Analyst, and 3-D Analyst • Esri ModelBuilder
• Trimble TerraSync and Trimble Pathfinder Office GPS
• Google Earth Pro
• Adobe Photoshop

In addition, FCS provides a suite of digital media, web, and graphic design solutions encompassing print media (reports, documents, flyers, posters, exhibits); digital media (videos, social media content, digital content); and web design (website design and consultation). FCS also provides custom branding

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solutions that may be leveraged on large-scale projects, such as logos, design books, and design guidelines. FCS also uses Adobe Creative Suite for graphic design solutions.

Editorial and Production Process
FCS operates a full-service production facility, which offers added-value in project cost savings (typically a savings of 25 percent over outsourcing) and streamlines the publications review and output processes.

Our in-house staff of word processors, editors, and graphic artists work together by sharing project information and ensuring version control to result in a cohesive product that supports each project’s compliance goals. We employ a variety of techniques to ensure that the highest possible degree of quality control is applied to our projects, including, but not limited to:

• Facilitating an initial review of all products and reports by word processors and technical editors for consistency and grammatical/technical accuracy;
• Conducting a senior management review of technical products by the project director to provide any oversight assistance that might add an additional degree of technical quality to the document before being released to the client; and
• Supporting immediate file exchange through our company-wide network to ensure version control.

FCS can provide a variety of data output, including printed copy, electronic transmittal via e-mail, online transfer, or flash drive. We offer our clients Web design and GIS services, color printer access, and 11 x 17-inch printing capabilities. Our software includes all current Windows, GIS, CAD, and Web design applications. FCS also maintains a complete in-house reprographics department using OCE systems, along with a variety of automated binding options, photo-quality color printing, and laminating for professional in-house report production, and a mass duplicator for CD production. FCS’s highly trained and dedicated staff ensures that document reproduction is closely monitored for compliance with internal and external client protocols.

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MASTER SERVICES AGREEMENT

BETWEEN THE

CITY OF MILPITAS AND MOORE IACOFANO GOLTSMAN INC

This Agreement is made and entered into as of (“Effective Date”) by and between the City of Milpitas, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”), and Moore Iacofano Goltsman, Inc. a California corporation with its principal place of business at 800 Hearst Ave., Berkeley, CA 97410 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS

A. City is a public agency of the State of California and is in need of professional services for the following project:

On-Call Environmental Services
(hereinafter referred to as “the Project”).

B. Contractor submitted its qualifications to City to provide On-Call Environmental Services services on an as-needed basis and is one of several Consultants selected by City to provide services.

C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services.

Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit A.

2. Compensation.

a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the rates set forth in the Schedule of Charges set forth in Exhibit B.

b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Million Dollars and Zero Cents ($1,000,000.00). This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within thirty (30) days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis.

3. Additional Work.

If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a s tatement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.

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4. Maintenance of Records.

5. Term.

6. Delays in Performance.

7. Compliance with Law.

a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements.

b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.

c. If applicable, Consultant is responsible for all costs of clean up and/ or removal o f hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.

8. Standard of Care.

9. Assignment and Subconsultant.

10. Independent Consultant.

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11. Insurance.

12. Indemnification.

a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consul tant, the City, its officials, officers, employees, agents, or volunteers.

b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

13. California Labor Code Requirements.

a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is One Thousand Dollars and Zero Cents ($1,000.00) or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all C alifornia Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all

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subconsultants performing such services must be registered with the Department of Industrial Relations.

14. Verification of Employment Eligibility.

15. Laws and Venue.

16. Termination or Abandonment.

a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.

c. The Consultant understands and accepts that at all times; the Agreement is subject to appropriation of funds by the Milpitas City Council. The Agreement may terminate without penalty, liability or expense of any kind to the City at the end of Agreement term. The City has no obligation to make appropriations for the Agreement in lieu of appropriations for new or other contracts. City budget decisions are subject to the discretion of the Mayor and City Council. Consultant’s assumption of risk of possible non - appropriation is a part of the consideration for the Agreement. This section controls against any and all other provisions of the Agreement.

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17. Documents.

18. Organization.

Consultant shall assign Paula Hartman as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

19. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

20. Notice.

CITY:

City of Milpitas
455 E. Calaveras Boulevard
Milpitas, California 95035
Attn: Jay Lee, Planning and Neighborhood Services
Director
CONSULTANT:

Moore Iacofano Goltsman, Inc.
800 Hearst Ave.

Berkeley, CA 97410
Attn: Paula Hartman, Principal

and shall be effective upon receipt thereof.

21. Third Party Rights.

Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.

22. Equal Opportunity Employment.

23. Entire Agreement.

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which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.

24. Severability.

The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.

25. Successors and Assigns.

26. Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

27. Time of Essence.

Time is of the essence for each and every provision of this Agreement.

28. City’s Right to Employ Other Consultants.

City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.

29. Prohibited Interests.

Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement w ithout liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit a rising therefrom.

30. Wage Theft Prevention.

b. BY SIGNING THIS AGREEMENT, CONSULTANT AFFIRMS THAT IT HAS

DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN THE FIVE (5) YEARS PRIOR TO

EXECUTING THIS AGREEMENT THAT CONSULTANT OR ITS SUBCONSULTANTS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. CONSULTANT FURTHER AFFIRMS

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THAT IT OR ITS SUBCONSULTANT(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,

DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS NOT BEEN FULLY

SATISFIED, CONSULTANT AFFIRMS THAT IT OR ITS SUBCONSULTANT(S) IS CURRENTLY

SATISFYING SAID JUDGMENT, DECISION OR ORDER THROUGH A PAYMENT OR ALTERNATIVE

PLAN APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGENCY AND THAT

CONSULTANT OR ITS SUBCONSULTANT(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.

c. If at any time during the term of this Agreement, a court or in vestigatory government agency issues a final judgment, decision or order finding that Consultant or a subconsultant it employs to perform work under this Agreement has violated any applicable wage and hour law, or Consultant learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Consultant shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order. Consultant or its subconsultant(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgmen t, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Consultant or its subconsultant is subject to a payment or other alternative plan, the Consultant or its subconsultant shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.

f. Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E.

Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above ad dress satisfies the notice requirements in this Section.

[SIGNATURES ON FOLLOWING PAGE]

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SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE

CITY OF MILPITAS AND MOORE IACOFANO GOLTSMAN INC

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF MILPITAS
Approved By:

MOORE IACOFANO GOLTSMAN INC

Ned Thomas, City Manager Signature

Date

Approved As To Form:

Name
_______________________________________________

Title
______________________________________________________
Michael Mutalipassi, City Attorney

Approved: Date

Lauren Lai, CPA, MPA
Finance Director / Risk Manager
Approved As To Content:

______________________________________________
Jay Lee, Planning and Neighborhood Services
Director

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EXHIBIT A

Scope of Services

Typical environmental impacts which will need to be assessed include but are not limited to:

The Contractor will provide the following:

B. Communicate and coordinate with specialized environmental consultants and City staff and other City consultants as necessary.

C. Provide a full range of environmental consulting services capable of meeting the needs of any given private development or City initiated project.

D. Provide the management of multiple projects and competing priorities while maintaining quality, meeting schedules and staying within budget.

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EXHIBIT B

Schedule of Charges/Payments

In no event sh all the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Million Dollars and Zero Cents ($1,000,000.00).

[Contractor Rate Sheets on Following Page]

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Proposed Compensation

Category 6—Environmental Permitting
and Compliance
Unless specified otherwise by prior agreement, invoices are submitted monthly showing time and charges for
professional services by staff category and a separate figure for expenses. Invoices are payable u pon receipt.

Invoices unpaid past 30 days are subject to interest at

1.5% per month. MIG, Inc., labor includes all overhead.

Rates subject to increase effective January 1 of each
year.

MIG STAFF ....................................................................... $/HR Senior Principal/CEO .......................................... 350 Principal .................................................... 225 - 240 Director/Senior Project Manager III ................ 200 - 230 Senior Project Manager I-II ............................ 175 - 195 Project Manager ......................................... 145 - 160 Snr. Biologist/Ecologist/Analyst III .................. 200 - 220 Snr. Biologist/Ecologist/Analyst I-II .................. 175 - 195 Biologist/Ecologist/Analyst I-II ........................ 105 - 160 Field Crew ........................................................... 95 Senior CAD/GIS/Graphic Analyst ..................... 130 - 160 CAD/GIS/Graphic Analyst .............................. 105 - 125 Administrative Support ......................................... 105 Senior Archaeologist/Historian ..................... 180 - 195 Archaeologist/Historian ............................... 105 - 160 Senior Landscape Architect ........................... 180 - 195 Landscape Architect..................................... 145 - 160 Landscape Designer ..................................... 115 - 125 Senior Planner ............................................ 180 - 195 Planner ..................................................... 105 - 160 ADA Specialist ............................................ 130 - 155 Snr. Facilitator/Engagement Specialist .............. 150 - 180 Facilitator/Engagement Specialist ................... 105 - 145 Digital Engagement/Web Design .................... 140 - 185 Graphic Designer/Visualization ..................... 105 - 160

EXPENSES .................................................................... BASIS Commercial travel...................................... Cost + 10% Automobile travel ............................... Current IRS rate Lodging/Meals .......................................... Cost + 10% Photocopy (A and B sizes) ......................... $0.10/image Color copies .......................................... $0.50/image Commercial report reproduction .................... Cost + 10% Noise meter setup ................................... $50/unit/day Bat acoustic detector ............................. $50/unit/night Subcontractors ......................................... Cost + 10% Other (lab, materials, etc.) ............................ Cost + 10%

BASIN RESEARCH ASSOCIATES ............................... $/HR Principal Investigator, M.A./PhD ............................... 183 Research Scientist, M.A./PhD .................................. 170 Archaeologist (M.A.) ............................................. 100 Archaeologist Technician (B.A.) ................................ 92

HEX AGON ....................................................................... $/HR President ........................................................... 315 Principal ............................................................. 270 Senior Associate .......................................... 230-250 Associate ...................................................... 185-210 Planner/Engineer ............................................135-165 Admin/Graphics .................................................... 115 Senior CAD Tech .................................................. 100 Technician .......................................................... 80

NINYO & MOORE ............................................................ $/HR Principal Geologist ............................................... 210 Senior Geologist ................................................. 200 Senior Project Geologist ........................................ 195 Project Geologist ................................................. 185 Senior Geologist ................................................... 170 Staff Geologist .................................................... 155

City of Milpitas | On-Call Environmental Services 21

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EXHIBIT C

Activity Schedule

[RESERVED]

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EXHIBIT D

Contractor or Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property wh ich may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor or Consultant, its agents, representatives, employees or subcontractors.

Contractor or Consultant shall furnish City with copies of original endorsements affecting coverag e required by this Exhibit D. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to re quire Contractor’s or Consultant’s insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.

Commercial General Liability (CGL):

Coverage at least as broad as Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

_X Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000.00 per occurrence. If a general aggregate limit applies , either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, incl uding products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separate ly to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Automobile Liability:

Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limits no less than $5,000,000.00 combined single liit for bodily injury and property damage.

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Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Contractor or Consultant, regardless of where the vehicles are kept or driven.

Professional Liability (Errors and Omissions):

_X Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate.

(If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate.

Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than per occurrence or claim, aggregate

Workers’ Compensation Insurance:

The Employer’s Liability policy shall be endorsed to waive any right of subrogation as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Builder’s Risk (Course of Construction):

Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

Contractor’s or Consultant’s Pollution Legal Liability:

If the Contractor or Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor or Consul tant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Cyber Liability Insurance

Cyber Liability Insurance with limits not less than $1,000,000 per claim.

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The policy shall provide coverage for breach response costs as well as regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations.

Surety Bonds:

Contractor shall provide the following Surety Bonds:

Bid Bond
Performance Bond
Payment Bond

Other Insurance Provisions:

The insurance policies are to contain, or be endorsed to contain the following provisions:

_X Additional Insured Status and Primary/Non-Contributory Language:

Loss Payee Status – Builder’s Risk/Course of Construction Insurance (applicable to Construction Contracts only)

_X Notice of Cancellation, Suspension or Otherwise Voiding Policies:

Each insurance policy required above shall contain or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City.

_X Waiver of Subrogation:

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Contractor or Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Contractor or Consultant, its employees, agents and subcontractors.

Completed Operations

THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS

Deductibles and Self-Insured Retentions (“SIR”):

Any deductibles or self-insured retentions must be declared to and approved by City. The City may require the Contractor or Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees; or (2) the Contractor or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability.

Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City.

City reserves the right to obtain a full -certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers:

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to City.

Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor or Consultant

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must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability Policy shall not contain lead -based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall includ e microbial matter, including mold.

Subcontractors:

Subcontractor agrees to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement and any other contract documents. Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub -subcontractor to the extent they apply to the scope of the sub - subcontractor’s work. A copy of the City indemnity and insuran ce provisions will be furnished to the subcontractor upon request.

Verification of Coverage:

Special Risks or Circumstances

City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.

Failure to Comply:

Each insurance policy required above shall contain or be endorsed to co ntain that any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Applicability of Coverage:

Each insurance policy r equired above shall contain or be endorsed to contain that the Contractor’s or Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

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Exhibit E

[CONSULTANTS EXCECUTION PLAN ON FOLLOWING PAGE]

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City of Milpitas | On-Call Environmental Services 7

Execution Plan

Executive Summary
MIG, INC., QUALIFICATIONS
MIG is a California Corporation headquartered in
Berkeley, California, with offices throughout the western United States with additional Northern California offices in San José and Sacramento. With over 260 employees,
MIG is a multidisciplin ary planning firm that offers
comprehensive environmental consulting services with
expertise in environmental impact analysis under the
California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA), biological resource
evaluations, resource agency permits, biological
monitoring, air quality, greenhouse gas and noise impact modeling and assessment, cultural/historical resource
assessment, and GIS analysis. We offer a broad scope of services to our clients with highly qualified, exp erienced staff. We have built a reputation for preparing solid,
defensible environmental documents in an efficient and
cost-effective manner. MIG has extensive experience
working within Santa Clara County, including the City of Milpitas, and the surroundin g region.

The San José MIG office will lead the environmental
services provided to the City. Combined with our
Berkeley office, MIG has over 20 qualified and trained
environmental professionals that could be assigned at
any given time to a potential project. MIG’s key staff
identified in the proposal have been CEQA practitioners for many years and are experienc ed project managers
and technical analysts. The professional qualifications of individuals who would be assigned to work with the City are presented in attached resumes.

TECHNICAL AND MANAGEMENT APPROACH
Scope of Work (Environmental Review). MIG has an
established task order response process that has proven to be successful. We can accommodate tight timelines
while completing multiple work orders simultaneously.

Our overall approach involves working with City staff
early in the process and maintaining a strong level of
communication that keeps the project moving forward.

We will prepare a communication structure that clearly
identifies a single point of contact with a back -up to ensure the City has ready access to the MIG Team. We
will also determine the frequency and format of meetings (in person or virtual). Agendas and goals for each
meeting will be circulated in advance. The appropriate
team members will be selected to best meet work order
scopes and objectives.

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City of Milpitas | On-Call Environmental Services 8
When we begin the CEQA (or NEPA) process we will
provide a data request to the City for project information, which we will review to determine the correct CEQA/
NEPA documentation. If the project is categorically
or statutorily exempt under CEQA, we can prepare
the Notice of Exemption with a supporting memo
demonstrating the applicability of the exemption. If the project is not exempt, we will prepare an Initial Study to determine if any significant environmental impacts
cannot be mitigated. We will use the thresho lds of
significance identified in the CEQA Guidelines Appendix G Environmental Checklist, and other appropriate
thresholds agreed to by the City, in our analysis. If there are any significant, unavoidable impacts, we will discuss them with City staff and d etermine if there are any
project design changes that can avoid them. If there are significant, unavoidable impacts that cannot be resolved, we will draft an Environmental Impact Report (EIR) and
work with City staff to develop alternatives and a project list for the cumulative impact analysis.

For NEPA projects, the process would be similar, with
MIG preparing Categorical Exclusions, Environmental
Assessments, or Environmental Impact Statements,
as applicable. Throughout the process, we will
communicate regularly with any questions about
the project or findings from our review that require
discussion. For each CEQA project, we will prepare a
scope and budget, including schedule and deliverables.

We will provide the noticing to the State Clearinghouse that starts the process for state agency review, but
anticipate the City will do the local public noticing
(County Clerk’s Office, local newspapers, direct mailings, etc.). The environmental review will address all the items on the CEQA Initial Study Checklist; however, some
issues are typically of higher concern and may require
more in-depth analysis (e.g., air quality/greenhouse
gas emissions, biological resources, cultural resources, noise, transportation/traffic) than others (e.g., ag riculture/ forestry, mineral resources).

SERVICES REQUESTED
MIG has assembled an outstanding team of
professionals to assist the City with CEQA document
preparation, all CEQA support services, and technical
analyses for private development and City-initiated
projects. To supplement MIG’s expertise we have
included Hexagon Transportation Consultants
(transportation and traffic planning), Basin Research
Associates (archaeological resources), and Ninyo and
Moore (geology, hydrogeology, Phase I/II Environmental
Site Assessments) as team members. All firms are highly qualified and have worked extensively in Santa Clara
County. MIG has well-established working relationships
over many years with each team member.

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City of Milpitas | On-Call Environmental Services 9
Work Plan
CEQA SERVICES: WORK PLAN OVERVIEW
The MIG Team has an established work order
response process that has been successful on similar
types of on-call contracts, and as a large firm, we
can accommodate tight timelines even if the team is
completing multiple work orders simultaneously. Our
overall approach is to work with City staff early in the process and to maintain a level of communication that
keeps the project moving forward. We will prepare a
communication structure that clearly identifies a single point of contact with a back -up to ensure City staff have ready access to the MIG Team. We will also consult
with City staff to determine the frequency and format
of meetings (in person or virtual) . Agendas and goals
for each meeting will be circulated in advance. The
appropriate team members will be selected to best meet
work order scopes and objectives.

For each project, we will prepare a scope and budget,
including schedule and deliverables. When we begin the CEQA process, we will provide a data request to the City for project information, which we will review to determine the correct CEQA documentation. If the project is
categorically or statutorily exempt, we can prepare
the Notice of Exemption with a supporting memo
demonstrating the applicability of the exemption. If the project is not exempt, we will prepare an Initial Study to determine if any significant environmental impacts
cannot be mitigated. We will use the thresholds of
significance identified in the CEQA Guidelines Appendix G Environmental Checklist and other appropriate
thresholds agreed to by the City in our analysis. If there are any significant, unavoidable impacts, we will discuss them with City staff and determine if there are any
project design changes that can avoid them. If there
are significant, unavoidable impacts that cannot be
resolved, we will draft an Environmental Impact Report
(EIR) and will work with City staff to develop alternatives and a project list for the cumulative impact analysis.

Throughout the process, we will communicate regularly
with any questions about the project or findings from our review that require discussion.

We will provide the noticing to the State Clearinghouse that starts the process for state agency review. Although we anticipate the City will do the local public noticing (County Clerk’s Office, local newspapers, direct mailings, etc.), we are prepared to conduct all local noticing as needed.

CEQA DOCUMENT PREPARATION PROCESS
The environmental review process for non -exempt
project documents will include the following steps:

Prepare a Notice of Preparation and schedule a
public scoping meeting if the CEQA document is an
EIR. These steps are not necessary for a categorical
exemption or an Initial Study/Negative Declaration/
Mitigated Negative Declaration (IS/ND/MND).

Prepare the CEQA document, including an
administrative draft and a public review draft. An
Administrative Draft IS can be prepared within
approximately six weeks, and an Administrative Draft
EIR can typically be prepared within approximately
eight weeks. We typically allow three weeks for lead
agency review comments, and two wee ks to revise
the document and prepare it for public review.

Prepare the Notice of Completion and submit the
document to the State Clearinghouse for circulation.

Assist City with local circulation as needed. This
occurs with the release of the public revi ew draft.

Once the CEQA document has been circulated for
public review (30 days for an IS/ND/MND; 45 days for
an EIR), the MIG Team will provide a draft response to
comments to the City. We will attend public meetings
and hearings as necessary and present the results
of public outreach, environmental studies, and CEQA
analysis as appropriate. If needed for a project, we
can assist the City with developing and implementing
a public outreach plan.

Circulation of a response to comments on a
Categorical Exemption or an IS/ND/MND is not
required; however, it is recommended that responses
be prepared for the file as part of the administrative
record. If an EIR is prepared, the response to
comments and errata will be provided in a Final EIR.

Prepare Mitigation Monitoring and Reporting Plan
pursuant to CEQA. This plan will reflect how the
mitigation measures in the CEQA document will be
implemented and documented.

Assist with or prepare Findings, if needed (EIR).

Attend Planning Commission and City Council
hearings to adopt the IS/ND/MND or certify the EIR.

File Notice of Determination with the State
Clearinghouse once the document is adopted/
certified.

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City of Milpitas | On-Call Environmental Services 10
Maintain the Administrative Record throughout the
process. This task requires due diligence in instructing subconsultants on our procedures and expectations
for maintaining the record and having a copy of all
cited materials available. MIG will work with the City
and subconsultants to secure documentation of all key
communications and decision points.

The following provides additional scope and work plan
information for some of the technical services led by MIG staff that can complement CEQA analysis.

TECHNICAL SERVICES: AIR QUALITY, CLIMATE

CHANGE, ENERGY, AND SOUND
MIG’s technical Air Quality, Climate Change, Energy, and Sound (ACES) experts will provide on -call consulting
services as part of the overall CEQA process (see CEQA
Services: Work Plan Over view, above) or as independent services that support the City’s project -specific needs.

Chris Dugan, Director of Air Quality, Climate Change,
Energy, and Sound Services, will manage and lead
the preparation of all technical on -call services, either directly to the City or as part of the overall CEQA
process overseen by Mike Campbell. Chris will be
supported by the staff identified in MIG’s organizational chart on page 14.

MIG’s ACES experts are well qualified to provide
technical services needed to support the City’s
environmental review process. We understand much
of the City is a developed community, with many new
projects involving redevelopment and repurposing
of existing lands. Such projects may or may not be
subject to General Plan policy requirements, Specific
Plan standards, and/or specific design guidelines that
affect technical air quality, GHG/energy, and noise and vibration analyses. Potential projects near existing
sources of noise and air pollution may require special
studies such as ambient noise monitoring and health
risk assessments to ensure planning and design
considerations are fully accounted for. Regardless of the level of effort, MIG will provide the City with thorough, accurate, and objective input and recommendations
throughout the technical study process so that the City may make the best possible informed decision regarding
the proposed project.

Our work products may include:

Air Quality Assessments
▪ Clean Air Plan and General Plan consistency
▪ Construction and operational emissions impact
assessments (e.g., CalEEMod)
▪ Construction health risk assessments
▪ Stationary and mobile source (road, rail) health risk assessments/air toxics analysis
▪ Peer review of applicant-prepared reports

Greenhouse Gas/Energy Assessments
▪ General Plan/Climate Action Plan consistency
▪ Construction and operational emissions impact
assessments
▪ Scoping Plan consistency
▪ Energy consumption estimates and impact
assessments
▪ Peer review of applicant prepared reports

Noise and Vibration Assessments
▪ Ambient noise monitoring and community noise
surveys
▪ Construction and operational noise impact
assessments
▪ Traffic noise modeling
▪ General Plan and Municipal Code consistency
▪ Construction and operational noise mitigation
development
▪ Nuisance noise reduction
▪ Peer review of applicant prepared reports

Work Plan
MIG’s approach to providing independent air quality,
GHG/energy, and noise technical services would follow
the same process outlined under CEQA Services:

Scope of Work. At the City’s request, MIG will prepare
and submit a project -specific scope of work and cost
estimate for the City’s review. Upon notice to proceed
with the agreed upon scope, MIG will review project
materials and, if necessary, prepare a data request for the incomplete or missing technical information needed
to prepare an objective and accurate technical report.

Upon receipt of all technical information, MIG will
proceed with the preparation of a draft w ork product

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City of Milpitas | On-Call Environmental Services 11
for the City’s review, address/respond to comments
from the City and/or the applicant on the draft work
product, and then finalize the work product for use in
the City’s environmental review document. MIG will
maintain regular communication with the City during the preparation of all technical work products.

TECHNICAL SERVICES: CULTURAL RESOURCES
Like the ACES technical team, our cultural resources
team is able to provide on-call cultural resources
services as part of the overall CEQA process (see CEQA
Process Work Plan Overview, above) or as independent
services that support the City’s project -specific needs.

Eleanor Cox, Senior Preservation Specialist, will manage and lead the preparation of all technical on -call services, either directly to the City or as part of the overall CEQA process overseen by Mike Campbell. Our work products
may include:

Historic Resource Evaluations and Determinations of
Eligibility
Field Inventories and Impact Assessments
Historic Context Studies
Cultural Landscape Reports
Project Analysis using the Secretary of the Interior’s
Standards
Cultural Resources Sections for CEQA documents,
including Mitigation Measures and Stipulations
Section 110 and Section 106 compliance under the
National Historic Preservation Act
Historic Property Treatment Plans and
Recommendations
Mills Act Requests
Prehistoric/Historic Archival Records and Literature
Reviews
Prehistoric/Historic Site Testing and Data Recovery
Projects
Native American Consultation
Section 106 Compliance Programs

Work Plan
While the types and flow of historical evaluation
projects can vary greatly, we have developed a “typical” workplan that illustrates our general approach under an on-call contract for cultural resource services:

1. Work order initiated

2. Data needs request

3. Start-up meeting

4. Research, fieldwork, and/or stakeholder consultation

5. Draft analysis and findings

6. Refinements based on client review and feedback

7. Consensus and final report

MAINTAINING BUDGETS AND SCHEDULES
MIG staff is capable of producing large work products
with accuracy and cost effectiveness. Our experienced
senior staff is actively involved in all aspects and phases of a project to ensure the quality of work products and to ensure our documents are on schedule and within
budget. Our project management strategies, including
assigning appropriate staff, careful scoping, engagement of senior project management throughout the project,
and consistent quality control, ensure we fulfill our
contract requirements to the best of our ability. Our
strategy starts with assigning the right personnel to the project team. MIG has many experienced senior project
managers who can be assigne d to a particular project
based on its needs and staff availability.

MIG CEQA analysts and technical experts have relevant
educational backgrounds to their areas of expertise and receive regular training and professional development.

MIG keeps abreast of changes to the CEQA Guidelines
and CEQA case law through conferences, trainings, and
professional associations.

Our project teams are assembled based on staff
expertise and their expected time availability during
the project. All MIG projects and staff capacity are
monitored and scheduled in coordination with existing
project workloads. We understand that no changes in
key personnel are to be made without written consent of the City.

Bi-weekly in-house Management Team meetings
and monthly project manager workload meetings
ensure a high level of communication between project
leaders and the efficient allocation of personnel and
other firm resources. MIG is committed to devoting
whatever resources are needed to assure each project
is appropriately staffed to meet project needs. We
staff projects and manage workflow in a collaborative

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City of Milpitas | On-Call Environmental Services 12
manner, sharing project information so that we have
backup coverage to accommodate staff absences. For
example, as primary contac t for this on-call contract, Mike Campbell will be backed up by Senior Project
Managers Barbara Beard and Christina Lau as alternative points of contact when Mike is on vacation.

MIG uses the following procedures to complete, manage,
and monitor a work order:

Stay on Scope. While there are often changes
throughout a project, the scope is a framework to
complete a project. City staff and MIG project managers will have developed a scope of work together. We will
track progress and identify any issues immediately to
ensure MIG stays on scope and/or accommodates any
changes in the agreed upon scope that are requested in
writing by the City.

Build Quality Control into Every Deliverable. We have
established specific project management tactics and
tracking to manage work orders and deliverables. As
part of our QA/QC process, every deliverable will be
reviewed by the Director and, if needed, MIG technical
experts with a solid understanding of the materials. After the City’s project manager reviews the final deliverables, we will discuss the final products to identify how well the final deliverables met the City’s needs and standards
and if improvement is needed in any area or task. We
understand that our role as the City’s environmental
consultant is to provi de objective and clear analysis, always with an eye toward ensuring legal compliance,
rather than as a project promoter.

Track the Project Budget. MIG has real-time project
budgeting and monitoring software to ensure budget
allocations and expenditures are aligned and support
project success. Once the schedule and final budget
have been set, the hours and costs by each team
member will be generated each month and cumulatively
for the monthly project invoice. This provides the
basis for reviewing actual hours against estimated
expenditures.

Maintain Client Involvement. The MIG project manager
will coordinate regularly with the City’s project manager to discuss deliverables, review the work in progress,
and identify any potential scheduling issues before they become problems.

Plan for Change. MIG has a clear process to address
changes while maintaining the integrity of the scope and ensuring consistency in our deliverables. Our process
is to: clearly identify the reasons for the change and
determine its potential impact to the project; advise
and seek input from the City and the project team
regarding the change; and develop a plan to adopt or
modify the needed change and monitor it for unintended
consequences.

RESPONSIVENESS AND COMMUNICATION
Our seasoned project managers will provide
excellent customer service through clear and regular
communication with City staff throughout the duration
of a project and work collaboratively with them to
achieve project milestones and meet critical deadlines.

We work closely with our client to understand project
goals and constraints. We are highly responsive to our
client’s needs and work hard to deliver work products
on time and within budget. Our process enables us to
deliver a high-quality work product; guide each project through the appropriate environmental analysis and
public review process (e.g., scoping meetings and public hearings) required by CEQA; and respond to public or
agency comments. We strive to understand the client’s
objectives and how the project work products fit with
other project components into the overall project
schedule.

MIG employs several strategies in project management
to ensure we fulfill our contract requirements to the best of our ability. Once a project is underway, we implement procedures to ensure close monitoring of the budget
and management and oversight of work products. The
senior project manager regularly tracks and reports work progress to the client, including budget and s chedule
status. Maintaining clear and regular communication with the client and project team is an essential component
of any successful endeavor and helps to identify
potential issues at the earliest possible time so that they may be resolved by the project team in a timely and
cost-efficient manner. Senior project managers use their considerable experience to assist in problem -solving
when problems arise during a project. MIG is able to
respond with speed and flexibility when unforeseen
events modify project components, timelines, budgets,
or consultant roles and responsibilities.

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City of Milpitas | On-Call Environmental Services 13
Analytical Resources
MIG has a variety of field and office equipment to assist with implementing a wide range of projects, from CEQA
and NEPA, to biological surveys and monitoring, to water quality and noise monitoring.

OFFICE - BASED EQUIPMENT
Emissions Estimator Model (CalEEMod)
ArcGIS suite of software for geospatial analysis and
mapping
Deltek, a real-time project budgeting and monitoring
software that allows us to track actual hours against
estimated expenditures
Fully accessible documents via CommonLook
Plotters capable of producing large-scale graphics
Extensive use of popular virtual collaboration tools,
from OneDrive and Teams to Zoom and Google Meet.

We also use Konveio to allow for secure collaborative
comment on Acrobat files.

Sonobat Version 4.4.5 bat call analysis software
Visualization software: AutoCAD, 3D Studio Max,
SketchUp, Adobe CS, and Real-Time 3D software Vizhen
Databases and methodologies to quantify mass
emissions (EMFAC2021, OFFROAD2021, U.S. EPA AP-42)
Dispersion models to quantify pollutant concentrations
(e.g., AERMOD, ALOHA, CALINE)
Noise analysis databases and models (SoundPLAN,
FHWA TNM3.1, and FHWA RCNM)

FIELD EQUIPMENT
Tablets, EOS Arrow 100 sub-meter global positioning
units, and geospatial software (e.g., Amigo Cloud and
Ecobot) to efficiently collect and manage field data
and generate reports
Mavic Drone for aerial photography to map vegetation
and monitor site conditions, where allowed
Seine net and waders for aquatic species surveys
Fish rescue equipment including dip nets of various
sizes, buckets, and bubble box/aerator
Fish screen exclusion equipment including wire/metal
fencing, block nets, and stakes
Mirror poles to check on nest activity status (two units) Binoculars (8x42) (all biologists possess these)
Kestrel wind speed meters

Sherman and Tomahawk traps for small mammal
live-trapping (50 Sherman, six Tomahawk)
SongMeter SM4 Bat FS passive bat detector (two units)
Anabat Walkabout active bat detector (two units)
Elekon Bat Logger active bat detectors (four units)
Petterson M500 microphone (used with bat acoustic
software on iPad)
Dual PVS14 night vision goggles (rental)
Depstech endoscope for crevice inspections (one unit)
Phantom Lite IR Flood Pro illuminator lights for bat exit count surveys (two units)
Tree survey equipment (DBH measuring tape and tree
tags)
Botanical specimen voucher collection equipment
(plant presses, herbarium specimen sheets, and labels)
AmScope 30x power dissecting microscope
Wetland delineation geospatial software, Munsell soil
chart, delineation shovel, and electronic copies of the U.S. Army Corps of Engineers (USACE) delineation
manuals, wetland data sheets, etc.

Hach turbidity meter, pH meter, and thermometer for
water quality monitoring
Larson Davis SoundExpert LxT Type 1 integrating-
averaging sound level meters; Piccolo -II Type 2
integrating-averaging sound level meters; acoustic
calibrators; weatherproof storage cases for long -term
field deployment of meters
Orange exclusion fencing, flagging, and stakes for
delineating sensitive resources
Field safety equipment such as a field safety manual, first aid kits, two-way radios, safety vests, hard hats, safety glasses, gloves, steel-toed boots, Tyvek suits, etc.

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City of Milpitas | On-Call Environmental Services 14
Work Samples
405 INDUSTRIAL ROAD LIFE SCIENCE PROJECT
IS/MND
The 405 Industrial Road Life Science Project consisted of the construction and operation of a new, six-story, 411,673 square foot commercial and life science building with two levels of below-grade parking in the City of San Carlos.

The project site is located in the northern portion of the City’s East Side Innovation District, an area that has been transitioning from low -intensity commercial and industrial businesses to biotechnology, life sciences, and high -tech office land uses over the last decade. The project requ ired that the site be rezoned from Landmark, Commercial (LC) to Planned Development (PD) to exclude above -grade
parking from the Floor Area Ratio calculation and to
allow construction of a building which would exceed the Landmark Commercial 50-foot zoning height limit.

MIG prepared an IS/MND that included a careful analysis of both day-time sunlight glare off the glass building and night-time glare from interior lighting to the adjacent residential neighborhood. The sunlight glare analysis
included motorists on adjacent Highway 101 and pilots
using the nearby San Carlos Airport. Other key areas
of impact analysis included potential bird strike of the glass building (for which bird -safe design features were identified, including types of glass for the façade while balancing light and glare consideration), a construction health risk assessment, and a robust Transportation
Demand Plan (TDM) to address the project’s vehicle
trips and vehicle miles traveled (VMT) being inconsistent with City Municipal Code Chapter 18.25 and the City’s
VMT policy if not properly tracked and enforced. MIG
also responded to community concerns that were raised
during the public comment period regarding potential
hazards that could be associated with future tenants
operating biological-safety laboratories at the site.

Client: City of San Carlos
Location: San Carlos, CA
Dates: 2022
Work Sample Documents:

IS/MND https://drive.google.com/
file/d/1bCOn2btrcReD6aH1_juXej_DUM1g3Vb6/
view?usp=sharing
MMRP https://drive.google.com/file/d/14RPhlmpOC7zgU
Wx2DrW51BoMMXjG9wiS/view?usp=sharing

FREEDOM CIRCLE FOCUS AREA PLAN AND

GREYSTAR PROJECT GENERAL PLAN

AMENDMENT EIR
MIG prepared program - and project-level air quality,
GHG, energy, and noise impact assessments to support
the environmental review of this important project. The program-level analyses evaluated the development of
up to 3,600 residential units and more than 2,000,000
square feet of non-residential development. The
project-level analyses evaluated the four -year phased
development of approximately 1,000,000 square
feet of residential space, including 3,600 residential
units. Technical work completed included: pre - and
post-project emissions modeling (air quality and
GHG), BAAQMD Clean Air Plan consistency analyses,
project-level construction health risk assessment,
VMT estimates, Climate Action Plan consistency, air
quality and GHG impact assessments, ambient noise
monitoring, traffic noise modeling, and on- and off-site noise impact assessments. MIG also supported the
CEQA lead agency (Santa Clara County) with detailed
responses to comments substantiating the City’s
evidence-based conclusions and supporting the
successful adoption of the plan/project and certification of the EIR.

Client: City of Santa Clara
Location: Santa Clara, CA
Dates: 2021 – 2022
Work Sample Documents:

DEIR https://drive.google.com/file/d/1ukaOyl3b -
T5SsQxykYHLjGF_AoQBF8o_/
view?usp=sharing
FEIR https://drive.google.com/
file/d/1qF5F_nklbSLSsseRRY2NcfLVBY14oF57/
view?usp=sharing

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MASTER SERVICES AGREEMENT

BETWEEN THE

CITY OF MILPITAS AND ASCENT ENVIRONMENTAL INC

This Agreement is made and entered into as of (“Effective Date”) by and between the City of Milpitas, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”), and Ascent Environmental, Inc., a California corporation with its principal place of business at 455 Capitol Mall, Suite 300, Sacramento, CA 95814 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS

A. City is a public agency of the State of California and is in need of professional services for the following project:

On-Call Environmental Services
(hereinafter referred to as “the Project”).

B. Contractor submitted its qualifications to City to provide On-Call Environmental services on an as-needed basis and is one of several Consultants selected by City to provide services.

C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services.

Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit A.

2. Compensation.

a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the rates set forth in the Schedule of Charges set forth in Exhibit B.

b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Million Dollars and Zero Cents ($1,000,000.00). This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within thirty (30) days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis.

3. Additional Work.

If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.

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4. Maintenance of Records.

5. Term.

6. Delays in Performance.

7. Compliance with Law.

a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements.

b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.

8. Standard of Care.

9. Assignment and Subconsultant.

10. Independent Consultant.

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11. Insurance.

12. Indemnification.

a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or wil lful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.

b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

13. California Labor Code Requirements.

a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is One Thousand Dollars and Zero Cents ($1,000.00) or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, pen alties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all

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subconsultants performing such services must be registered with the Department of Industrial Relations.

14. Verification of Employment Eligibility.

15. Laws and Venue.

16. Termination or Abandonment.

a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.

c. The Consultant understands and accepts that at all times; the Agreement is subject to appropriation of funds by the Milpitas City Council. The Agreement may terminate without penalty, liability or expense of any kind to the City at the end of Agreement term. The City has no obligation to make appropriations for the Agreement in lieu of appropriations for new or other contracts. City budget decisions are subject to the discretion of the Mayor and City Council. Consultant’s assumption of risk of possible non - appropriation is a part of the consideration for the Agreement. This section controls against any and all other provisions of the Agreement.

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17. Documents.

Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full fo r the services described in this Agreement, be furnished to and become the property of the City.

18. Organization.

Consultant shall assign Mike Parker as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

19. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

20. Notice.

CITY:

City of Milpitas
455 E. Calaveras Boulevard
Milpitas, California 95035
Attn: Jay Lee, Planning and Neighborhood Services
Director
CONSULTANT:

Ascent Environmental, Inc.
455 Capitol Mall, Suite 300
Sacramento, CA 95814
Attn: Mike Parker, Principal

and shall be effective upon receipt thereof.

21. Third Party Rights.

Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.

22. Equal Opportunity Employment.

23. Entire Agreement.

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24. Severability.

The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.

25. Successors and Assigns.

26. Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

27. Time of Essence.

Time is of the essence for each and every provision of this Agreement.

28. City’s Right to Employ Other Consultants.

City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.

29. Prohibited Interests.

Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

30. Wage Theft Prevention.

b. BY SIGNING THIS AGREEMENT, CONSULTANT AFFIRMS THAT IT HAS

DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN THE FIVE (5) YEARS PRIO R TO

EXECUTING THIS AGREEMENT THAT CONSULTANT OR ITS SUBCONSULTANTS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. CONSULTANT FURTHER AFFIRMS

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THAT IT OR ITS SUBCONSULTANT(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,

DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS NOT BEEN FULLY

SATISFIED, CONSULTANT AFFIRMS THAT IT OR ITS SUBCONSULTANT(S) IS CURRENTLY

SATISFYING SAID JUDGMENT, DECISION OR ORDER THROUGH A PAYMENT OR ALTERNATIVE

PLAN APPROVED BY THE APPLICABLE COURT/GOVERNMENT AGE NCY AND THAT

CONSULTANT OR ITS SUBCONSULTANT(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.

c. If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that Consultant or a subconsultant it employs to perform work under this Agreement has violated any applicable wage and hour law, or Consultant learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Consultant shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order. Consultant or its subconsultant(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Consultant or its subconsultant is subject to a payment or other alternative plan, the Consultant or its subconsultant shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.

d. For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labo r, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws.

f. Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E.

[SIGNATURES ON FOLLOWING PAGE]

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SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE

CITY OF MILPITAS AND ASCENT ENVIRONMENTAL INC

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF MILPITAS
Approved By:

ASCENT ENVIRONMENTAL INC

Ned Thomas, City Manager Signature

Date

Approved As To Form:

Name
________________________________________________

Title
______________________________________________________
Michael Mutalipassi, City Attorney

Approved: Date

Lauren Lai, CPA, MPA
Finance Director / Risk Manager
Approved As To Content:

_____________________________________________
Jay Lee, Planning and Neighborhood Services
Director

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EXHIBIT A

Scope of Services

Typical environmental impacts which will need to be assessed include but are not limited to:

The Contractor will provide the following:

B. Communicate and coordinate with specialized environmental consultants and City staff and other City consultants as necessary.

C. Provide a full range of environmental consulting services capable of meeting the needs of any given private development or City initiated project.

D. Provide the management of multiple projects and competing priorities while maintaining quality, meeting schedules and staying within budget.

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EXHIBIT B

Schedule of Charges/Payments

In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of One Million Dollars and Zero Cents ($1,000,000.00).

[Contractor Rate Sheets on Following Page]

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SECTION 11 // PROPOSED COMPENSATION

After March 1, 2024, budget augmentations and contract amendments will be calculated using updated billing rates, unless precluded by contract terms.

Labor Classification Billing Rate
Principal, Director $225 to $375
Senior Environmental Manager, Senior Planner/Scientist/Biologist $175 to $250 Environmental Manager, Project Planner/Scientist/Biologist $145 to $200 Staff Planner, Environmental Planner, Staff Scientist/Staff Biologist $105 to $175 Graphics/GIS $115 to $150
Document Production/Word Processor/Administrative Assistant $95 to $145 Project Assistant $75 to $125
Direct Costs Rates
Reproduction: 8½” by 11” $0.07/page (black and white); $0.26/page (color) Reproduction: 11” by 17” $0.14/page B&W; $0.52/page color Reproduction: Plotter $5/square foot
Reproduction: CDs $10/disc
Automobile Mileage (IRS rate in effect) $0.655
Noise Meter $100/half day, $150/day, $200/day plus overnight, $500/week GPS Unit $100/half day, $150/day, $200/day plus overnight, $500/week Bat Detector (Echo Meter Touch for iOS) $50/full day, $200/week Bat Detector (Song Meter SM4Bat FS) $125/full day, $500/week Spotting Scope $50/day, $200/week
Lodging and/or Per Diem Government rates or as negotiated Other Direct Costs As incurred
Subcontractors As incurred*
*A project-support management cost of 10 percent will be applied to subcontractor costs.

Lump-Sum Price. Work is authorized based on a lump sum price. Monthly invoices will be issued based on the percentage of progress toward completion of the work.

Price Allocation to Tasks or Staff. If the proposed cost presentation allocates funding to specific tasks or staff, Ascent may reallocate budget during the course of work, as long as the total contract price is not exceeded. 11 PROPOSED COMPENSATION

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EXHIBIT C

Activity Schedule

[RESERVED]

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EXHIBIT D

Contractor or Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor or Consultant , its agents, representatives, employees or subcontractors.

Commercial General Liability (CGL):

Coverage at least as broad as Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

_X Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,0 00.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate limit applie s, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Automobile Liability:

Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limits no less than $5,000,000.00 combined single liit for bodily injury and property damage.

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Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Contractor or Consultant, regardless of where the vehicles are kept or driven.

Professional Liability (Errors and Omissions):

_X Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate.

(If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate.

Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than per occurrence or claim, aggregate

Workers’ Compensation Insurance:

The Employer’s Liability policy shall be endorsed to waive any right of subrogation as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Builder’s Risk (Course of Construction):

Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

Contractor’s or Consultant’s Pollution Legal Liability:

If the Contractor or Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor or Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Cyber Liability Insurance

Cyber Liability Insurance with limits not less than $1,000,000 per claim.

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The policy shall provide coverage for breach response costs as well as regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations.

Surety Bonds:

Contractor shall provide the following Surety Bonds:

Bid Bond
Performance Bond
Payment Bond

Other Insurance Provisions:

The insurance policies are to contain, or be endorsed to contain the following provisions:

_X Additional Insured Status and Primary/Non-Contributory Language:

Contractor’s general liability and automobile liability policies shall be primary and shall not seek contribution from the City’s coverage and be endorsed to add the City and its elected and appointed officials, officers , attorneys, agents employees and volunteers as additional insureds under such policies using Insurance Services Office form CG 20 10 (or equivalent) on the general liability policy. For construction projects, an endorsement providing completed operations coverage for the additional insured on the general liability policy, ISO form CG 20 37 (or equivalent), is also required.

Loss Payee Status – Builder’s Risk/Course of Construction Insurance (applicable to Construction Contracts only)

_X Notice of Cancellation, Suspension or Otherwise Voiding Policies:

Each insurance policy required above shall contain or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City.

_X Waiver of Subrogation:

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Contractor or Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Contractor or Consultant, its employees, agents and subcontractors.

Completed Operations

THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS

Deductibles and Self-Insured Retentions (“SIR”):

Any deductibles or self-insured retentions must be declared to and approved by City. The City may require the Contractor or Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees; or (2) the Contractor or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability.

Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City.

City reserves the right to obtain a full -certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers:

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to City.

Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor or Consultant

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must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability Policy shall not contain lead -based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Subcontractors:

Subcontractor agrees to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement and any other contract documents. Subcontractor further agrees to include the same requireme nts and provisions of this Agreement, including the indemnity and insurance requirements, with any sub -subcontractor to the extent they apply to the scope of the sub - subcontractor’s work. A copy of the City indemnity and insurance provisions will be furni shed to the subcontractor upon request.

Verification of Coverage:

Special Risks or Circumstances

City reserves the right to modify these requi rements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.

Failure to Comply:

Each insurance policy required above shall contain or be endorsed to contain that any failure to comply wit h reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Applicability of Coverage:

Each insurance policy required above shall contain or be en dorsed to contain that the Contractor’s or Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

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Exhibit E

[CONSULTANTS EXCECUTION PLAN ON FOLLOWING PAGE]

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Executive Summary
Qualifications
For the past 13 years, Ascent has worked with cities, counties, special districts, regional agencies, and a wide variety of state agencies specializing in on-call planning and environmental document preparation. Ascent staff are experts in compliance with the overarching environmental planning laws and regulations used to eval uate projects, specifically CEQA and NEPA. Our environmental compliance experience includes a wide range of projects, including public infrastructure and facilities, land management plans, and proposed regulations. We are more than document preparers; we help devise the most effective and efficient environmental review strategies and work with our clients as they seek to manage future challenges. We have extensive experience in leading and conducting public meetings and the meetings required for CEQA and NEPA public review processes. Ascent staff also lead/provide information- sharing opportunities for other industry professionals, including conference development and management (e.g., the Continuing Legal Education’s annual CEQA conference in San Francisco and the Association of Environmental Professionals’ annual CEQA workshops for early career and seasoned environmental professionals).

In addition to preparing our own documents, Ascent has been called upon to review documents prepared by other firms to improve quality and defensibility, and to assist lead agencies with preparation of supplemental environmental documents after a CEQA document has been subject to an adverse court decision. An example is the Additional Environmental Analysis for the Newhall Ranch EIR, in response to the 2015 California Supreme Court decision, Center for Biological Diversity v. California Department of Fish and Wildlife, which overturned an EIR prepared by others that evaluated a 14,000-acre new urban community in the Santa Clarita Valley of Los Angeles County.

Technical Approach
Upon receipt of a request for assistance from the City of Milpitas, our staff will establish a scope of work, schedule, and budget for each project assigned to Ascent. We will then mobilize technical staff members who have the most relevant experience to the type of project or anticipated issues. Based on project information, Ascent will propose the appropriate level of environmental documentation for the City’s needs and the project’s character. We will develop a draft project-specific scope of work for City review and comment. The draft scopes will include Ascent staff’s expertise in conducting biological resources field reviews and preparing technical studies in support of CEQA and NEPA documents (i.e., air quality and greenhouse gas studies). Our in-house technical team and subconsultants are carefully chosen for their technical expertise, successful record of document delivery and quality, understanding of agency regulations and expectations, and experience with projects in the Bay Area.

Our approach to environmental review is to provide the correct level of environmental documentation to meet the City’s needs for public transparency and legal defensibility—no more, no less. Each project submitted to Ascent for a scope of work would undergo a stepwise evaluation to identify the appropria te environmental document:
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1. Confirm whether or not environmental regulations even apply;

2. if CEQA requirements are applicable, determine what level of review is required, what document(s) should be prepared, and whether any streamlining tools apply; and

3. identify and execute necessary technical studies to support completion of the CEQA document(s).

This approach saves the City of Milpitas time and cost when exemptions, exclusions, and other streamlining tools are found to be available.

Management Approach
The contract manager and task manager will be responsible for close communications with the City. This interaction can include weekly status discussions in person or by telephone. As the contract manager/principal, Mike Parker will be the point of contact for any issues and has the authority to commit Ascent’s resources to meet our quality and schedule objectives. We conduct weekly schedule and workload management of technical, graphics, w ord processing, and production staff; long-range staffing projections (3 to 6 months); and critical path method and timeline scheduling for tasks and milestones.

Understanding of Services
Milpitas is a community that is engaged, sophisticated, and understands the CEQA process, including how to use CEQA as a brake lever for projects. The City needs a consultant with deep technical expertise, in a wide range of environmental issue areas, who can not only provide necessary substantial evidence for CEQA documen ts, but who can stand in front of a contentious crowd at a public hearing and explain complex issues in a way that the public and decision-makers can understand. This means that environmental review for projects should be completed in a thoughtful and efficient manner, and also with a deep understanding of CEQA , NEPA and their litigation pitfalls. Each action that could trigger CEQA or NEPA compliance would thus undergo a stepwise evaluation to (1) confirm whether environmental review under these laws applies or if the project could be exempt; (2) if CEQA or NEPA are applicable, determine what level of review is required and what document(s) should be prepared; and (3) identify and execute necessary technical studies to support completion of the CEQA/NEPA document(s).

Scope of Work
Ascent staff are committed to providing value and efficiency in executing any requests for assistance from City staff on both private development and City-initiated projects. Our effort begins with developing a thorough understanding of the project (as currently envisioned) and any preliminary environmental analysis conducted by City staff to identify the appropriate level of environmental documentation, as well as conducting an evaluation of any available streamlining opportunities (e.g., applicability of exemptions, tiering, determination that the project is within the scope of another EIR). In general, we evaluate the potential for projects to take advantage of the most cost/schedule-efficient options first. Oftentimes, this is an evaluation of available statutory and categorical exemptions identified in the CEQA Guidelines or statute. If a project is exempt, Ascent will prepare the NOE, complete with rationale for applying the particular exemption(s) and for concluding that no exceptions to the exemption (CEQA Guidelines Section 15300.2) are present.

If, upon review, the project is determined not exempt, but impacts would be clearly mitigable to less-than-significant levels, an ND or MND will be prepared using an Initial Study Checklist (CEQA Guidelines Appendix G) as a tool to document substantial evidence to support environmental conclusions. Ascent will prepare the project description based on information from the City and other appropriate sources. All issues in the CEQA Initial Study Checklist will be addressed. Ascent professionals will determine for each issue whether the project has the potential to result in a

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significant impact (in which case an EIR is needed and an ND or MND would not be appropriate), if there are significant impacts that can be reduced to less-than-significant levels through mitigation, if the impact is less than significant, or if there is no impact. Evidence will be provided to support each conclusion, with substantiation ranging from answers based on simple facts (e.g., the site is not located on agricultural land) to more detailed technical studies (e.g., cultural resources report, biological resources reconnaissance). Assuming no significant unavoidable impacts would result, a proposed ND or MND will be prepared, circulated with the initial study for a 30 -day public and agency review period, and the comments considered before adoption of the ND or M ND and mitigation monitoring and reporting plan and approval of the project. Within 5 days of project approval, Ascent will file a notice of determination (NOD) with the State Clearinghouse on behalf of the City, which starts a 30 -day statute of limitations period on legal challenges to the approval.

If it is determined that the project has the potential to result in one or more significant and unavoidable (cannot be clearly mitigated) effects, Ascent will prepare an EIR. The process may begin with preparat ion of an initial study to determine the focus of the EIR, but it is not required. A notice of preparation (NOP) will be prepared, alerting responsible, trustee, and other interested parties that an EIR will be forthcoming and soliciting input on the scope and content of the EIR. A scoping meeting would be held during this period. When preparing the EIR, we will consider comments received within the 30-day NOP period.

Once the project description and objectives have been approved by the City, Ascent wi ll prepare the Administrative Draft EIR in compliance with CEQA and the State CEQA Guidelines. We will submit the completed administrative draft to the City for review and comment. For each environmental issue area, Ascent will include discussions of environmental setting, regulatory framework, impacts, and mitigation recommended in the initial study checklist (CEQA Guidelines Appendix G).
 Aesthetics
 Agriculture and Forestry Resources
 Air Quality
 Biological Resources
 Cultural Resources/Tribal Cultural Resources
 Energy
 Geology and Soils
 GHG Emissions
 Hazards and Hazardous Materials
 Hydrology and Water Quality
 Land Use and Planning
 Mineral Resources
 Noise
 Population and Housing
 Public Services
 Recreation
 Transportation
 Utilities and Service Systems
 Wildfire

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 Mandatory Findings of Significance
Following review of the Administrative Draft EIR and the resolution and incorporation of comments, Ascent will prepare a screencheck version for final approval before the document is circulated as a public Draft EIR.

Following the close of the public comment period, Ascent will review comments received, discuss the approach to responses with the City, draft responses to significant environmental points raised in the comments, and prepare the Final EIR. Upon certification of the EIR and adoption of the MMRP, Findings, and Statement of Overriding Considerations, as applicable, the City may approve the project. Within 5 days of project approval, we will file an NOD with the State Clearinghouse on behalf of the City, which starts a 30-day statute of limitations period on legal challenges to the approval.

As a matter of course, Ascent maintains an accurate electronic record of all references used to support the preparation of an environmental document during execution of a project. This record will be provided to the City as a contribution to the administrative record.

Site Visits and Data Collection
Site visits and data collection are routine elements of environmental analysis and contribute valuable input to any CEQA document or special study. Project sites may be visited by the project manager to understand site characteristics and context and by technical specialists such as wildlife biologists, botanists, archaeologists, architectural historians, and others as necessary to gather site-specific information and collect data. Data collection may involve habitat mapping, wetland delineation, species counts, presence/absence surveys, noise monitoring, and more. Information collected during site visits is often compiled and included in technical appendices, contributing to the substantial evidence needed to support environmental conclusions.

Environmental Permitting
We begin with the end result in mind. Ascent approaches environmental and planning services with an eye toward project delivery, including securing permits and agency approvals, rather than just focusing on completing the planning, design, or environmental document process. To that end, we engage early with permitting agencies to understand and respond to their information needs (form and content) and schedule considerations (e.g., backlog, internal and external review windows), and we maintain those lines of communication throughout the permitting process. We develop strategic and effective approaches for securing environmental permit approvals based on agency input and provide credible and complete information to regulatory decision-makers. It has been our experience that regulatory agencies need to trust the credibility and balanced objectivity of the information upon which they will base their permit approvals. We have applied this strategic app roach successfully for private developments and public facilities. Our expertise includes the following:
 Clean Water Act, Section 404 wetland permits and Section 401 water quality certifications  Endangered Species Act (ESA), Section 7 Biological Assessments, Opinions, and Consultations  ESA, Section 10(a) Habitat Conservation Plans and Incidental Take Permits  California ESA, Section 2081 Incidental Take Permits and 2080.1 Consistency Determinations  Porter-Cologne Water Quality Control Act
 California Fish and Game Code, Section 1602 Streambed Alteration Agreements  California Coastal Act
 National Historic Preservation Act
 Fish and Wildlife Coordination Act

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 Migratory Bird Treaty Act
 Native American Graves Protection and Repatriation Act  Federal Clean Air Act
 California Clean Air Act
 Applicable air district rules, regulations, and guidance documents  Local noise ordinances and/or general plan noise elements  Executive Orders 11593 (Cultural Resources), 11988 (Floodplains), 11990 (Wetlands), 12898 (Environmental Justice), and 13653 (Preparing the United States for the Impacts of Climate Change) Technical Expertise and Special Studies
CEQA compliance is a multidisciplinary process, but sometimes, depending on the project —its location, context, characteristics, and even level of controversy—focus on one or more technical areas is required. In such instances, professionals with demonstrated qualifications (e.g., education, certification, experience) and technical expertise are needed to conduct research, collect and analyze data, and prepare special studies to inform a project decision, bolster the administrative record, respond to controversy, and/or support a resource agency permit application. For example, a project may require a general environmental opportunities and constraints analysis, biological resources studies (e.g., wetland delineation, 404(b)(1) alternatives analysis, noxious weed survey and mitigation plan, sensitive habitat assessment), GHG emissions analysis, traffic study, or noise modeling and assessment. Based on consultation with the City, each study will be tailored to the needs of the project, ensuring proper focus on the relevant issues and concerns.

Project Management
Ascent’s project manager, Greta Brownlow, PhD, will maintain a master matrix of projects that have been assigned to the Ascent team; the matrix will contain a summary of project work status and schedule. Greta will be supported by Kari Zajac; Lara Rachowicz, PhD; and Yingying Cai, who will serve as the task managers on individual projects. Mike Parker, AICP, as the principal-in-charge, has the authority to commit the company’s resources to meet our quality and schedule objectives.

The task manager for a given project is responsible for planning and controlling the execution of the work and schedule. The task manager and project manager are also responsible for close communications with the City, which can include status discussions in person or by telephone, as appropriate. Frequent communication with our technical team is another critical responsibility of the task manager. This communication ensures early issue identification and resolution, as needed, to prevent schedule conflicts.

As outlined in the team organizational chart in Section 10. Personnel Assigned, Ascent’s management team consists of the principal, the project manager, and three task managers. Each of these team members is experienced in managing multiple projects simultaneously on their own. Together, the team offers the City a depth of management resources to ensure that multiple projects each receive appropriate attention.

Quality Assurance/Quality Control
Ascent takes pride in producing high-quality environmental documents that are technically accurate, complete, clear, and professionally presented. Quality is the cornerstone of what we do, and we achieve this through rigorous attention to our quality management process. From start to finish, every document undergoes multiple reviews to ensure that Ascent deliverables exceed industry standards. Ascent’s quality strategies go well beyond the t ypical.

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Strategies to achieve high quality are embedded throughout our projects from contract execution and preparation of the deliverable to production of the final work product. From the outset of document preparation, authors use Ascent’s Style Guide to ensure the consistency and quality of all documents. Every document is reviewed by senior staff and the project principal. This approach ensures not only that the style and content of the document a re accurate but that the approach, tone, and usefulness of the document meet client expectations. In addition to these reviews, the following are established for each specific project to facilitate consistent quality assurance and control for each project-specific deliverable.
 Project team communication protocols
 Project team contact list
 Milestone check-ins with client for concurrence on technical approaches, sample sections, and preliminary results
 Issue-specific subconsultant consultations for expert review to ensure legal defensibility  Project-specific style manual for writing conventions and global document consistency  Project-specific document layout template
 Project team communication/coordination meeting(s)
On Time and on Budget
Ascent understands the need to perform within fixed and challenging schedules and makes effective use of time and staff resource management tools to optimize efficiency. We strive to understand the objectives of a given project, and how the environmental process fits with other project needs and timelines. Further, we have demonstrated that we can deliver within narrow time frames, often on simultaneous projects.

Scheduling and workload management systems at Ascent are designed to allocate resources to meet all client due dates, regardless of their timing or the number of deadlines in a given period. Specifically, Ascent’s scheduling and workload management systems include project/staff management software (Deltek Vantagepoint); Using these proven strategies, Ascent has successfully completed numerous complex projects with demanding schedules that required attentive project management, coordination, and communication.

Work Samples
We have provided hyperlinks below to two complete final EIRs, prepared within the past 2 years, that demonstrate our experience with projects similar in scope to the work described in the SOQ.

Amendment to the University Community Plan and the Virginia Smith Trust Specific Plan Project
The Virginia Smith Trust (VST) Specific Plan is located on approximately 654 acres in eastern Merced County. The Specific Plan includes residential, employment, parks/open space, and public facilities land uses. T he plan has been designed to support the nearby University of California (UC) Merced and is envisioned for annexation into the city of Merced. Similar proposals on all or part of the property were previously evaluated in the 2004 University Community Plan prepared by Merced County and in the 2009 Long Range Development Plan for UC Merced. Ascent developed a unique checklist to develop a CEQA compliance strategy for the Specific Plan that best leverages the work that has been done on the site. Based on the results of the checklist, we are preparing a Subsequent EIR to the 2004 University Community Plan to address changes in the Community Plan, the proposed VST Specific Plan, and annexation of the specific plan area into the city. The EIR requires coordin ation with the City of Merced, UC Merced, and the Local Area Formation Commission of Merced County.

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DRAFT Focused Subsequent Environmental Impact Report for the UCP Update and VST Specific Plan FINAL Focused Subsequent Environmental Impact Report for the UCP Update and VST Specific Plan Betabel Commercial Conditional Use Permit EIR
The project’s goal is to develop and enhance approximately 26 acres of land along the US Route 101 corridor, introducing a diverse range of commercial uses consisting of a gas station with convenience store, a restaurant, amusement buildings with exhibits, a motel and banquet hall with outdoor pool and outdoor movie screen, and an outdoor event center. The design of the project would be reminiscent of the 1940s and 1950s American roadside. The project site has already been partially affected by previous and current land uses, including a farmstand, nursery structure, and roadways.

To assess the project’s environmental impact, Ascent prepared an EIR for the County of San Benito. The EIR evaluates the physical effects of infrastructure improvements, such as an on -site water supply system comprising five well sites and fire flow tanks, an on-site wastewater treatment system with a septic leach field, and retention basins for stormwater drainage. This project was awarded the prestigious Environmental Analysis Document Outstanding Award by the California Association of Environmental Professionals.

EIR for the Betabel Commercial Development Conditional Use Permit Project, San Benito County Analytical Resources
Ascent uses a variety of software and protocols for conducting, reviewing, and overseeing the preparation of technical analyses for CEQA compliance. Our staff have experience using emission estimation models (e.g., California Emissions Estimator Model [CalEEMod], emission factors model [EMFAC], Off-Road Emissions Inventory Program [OFFROAD]) and GHG prediction protocols (e.g., Local Government Protocols, AP 42 emission factors). We use mobile GIS applications such as ArcPad, SurvCE, Collector for ArcGIS, Wildnote, QGIS, Survey123 for ArcGIS, ArcGIS Pro Desktop and Online, Adobe Illustrator, AutoCAD, ESRI, Google Earth, and SSURGO. We use tools and software used to conduct health risk assessments (HRAs), such as the air dispersion modelin g software AERMOD and the risk assessment tool HARP. For energy impact analysis, we use Excel calculation sheet + MS Access database queries using statewide and local consumption factors, as well as Python.

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Adopt a Resolution Authorizing the City Manager to Execute a Fund Transfer Agreement with the California Department of Transportation (Caltrans) to Fund Project No. 4299 Bicycle Lane Improvement Project (Staff Contact: Matt Cano, Assistant City Manager, 408-586-3012; and Roberto Alonzo, PW Division Manager - Engineering, 408-586-3316)
Category: Consent Calendar-Community Development
Meeting Date: 1/23/2024
Recommendation: Adopt a resolution authorizing the City Manager to execute a Fund Transfer Agreement with the California Department of Transportation (Caltrans) to receive Caltrans 2022 Priority Legislative Budget Project (PLPB) Appropriation to fund Project No. 4299 Bicycle Lane Improvement Project.

BACKGROUND:

The City received a State allocation of a One-time State Funding Grant for bicycle facility improvements in FY22-23. The Milpitas Bike Lane Facilities Enhancements project is funded with $1 million from the State Budget Act of 2022. The project goal is to improve bicyclist safety, reduce traffic stress for bicycle users, and promote bicycle use by eliminating bicycle facility gaps and upgrading existing bicycle facilities in the City. The project streets include Abel Street, Main Street, and Milpitas Boulevard corridors. These streets are identified as high priority routes by the Master Plan that connect to historical downtown on Main Street, schools, and a key route that crosses railroad tracks and creek. The bike enhancements proposed for the project include Class IIB: Buffered Bike Lane, Class IV: Cycle Track, Class III: Bike Route, and Green Bike Lane at bicycle and vehicular conflict zones. The project locations were presented and approved at the September 19, 2023 City Council meeting.

ANALYSIS:

The recently adopted (2024-2028) 5-year Capital Improvement Program includes Project No. 4299 Bicycle Improvement Project 2024-2025, the “Project.”
The existing bicycle network in the City of Milpitas includes approximately 50 miles of bicycle lanes, buffered bicycle lanes, designated bicycle routes, and paved shared use paths. Over 30 miles of the bicycle facilities are on-street bikeways and are primarily located along major roadways with higher posted travel speeds and significant traffic volumes.

The City’s Trail, Pedestrian, and Bicycle Master Plan adopted by City Council in 2022 proposed to expand and enhance the bicycle facilities with a complete and connected low-stress bicycle network that supports travel to, from, and around major destinations in Milpitas.

This projects’ goals are to install and improve existing bicycle facilities in the City and provide safer bicycle routes and promote alternative methods of transportation to reduce greenhouse gas emissions.

Project No. 4299 Bicycle Improvement Project 2024-25 – Estimated Total Project Cost $1.0M •Abel Street from Milpitas Blvd to Redwood Avenue
•Abel Street from Redwood Avenue to Marylinn Drive
•Marylinn Drive from Abel Street to Weller Lane
•Main Street from Weller Lane to Carlo Street

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•Main Street from Carlo Street to Great Mall Parkway
•Milpitas Blvd from Abel Street to Calaveras Blvd
The Project is to be funded using $1M in Caltrans PLPB Earmarked funds. Following approval of the project list at the September 19, 2023 City Council meeting, the project scope and locations were reviewed and approved by Caltrans. In order for the City to receive the PLBP funds, a Fund Transfer Agreement needs to be executed between the City and Caltrans. Following execution of the Fund Transfer Agreement, design is anticipated to start Spring 2024, and construction in Summer 2025.

POLICY ALTERNATIVE(S):

Alternative 1: Do not approve Project No. 4299 Bicycle Improvement Project 2024-2025 is to be funded by Caltrans 2022 PLPB Earmarked funds.

Pros: None.

Cons: To receive the $1.0M PLPB Earmark fund requires that the project locations be approved by City Council and subsequently by Caltrans so that a Fund Transfer Agreement with Caltrans can be executed.

Reason not Recommended: The PLPB Earmark fund is needed to pay for the proposed bicycle lane improvements.

FISCAL IMPACT:

The receipt of the PLPB Earmark fund for use in the City’s bicycle lane enhancement project is needed to help offset the City costs and will reduce the need for funding from other City sources such as the General Fund. It is anticipated the City will receive $1M in PLPB Earmark funds to be used in Project No. 4299 Bicycle Improvement Project 2024-2025.

California Environmental Quality Act (CEQA):

The action is a fiscal activity of the City government or an action to create a City government funding mechanism that does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment and is not a project pursuant to Cal. Code of Regs., tit. 14, § 15378.

RECOMMENDATION:

Adopt a resolution authorizing the City Manager to execute a Fund Transfer Agreement with the California Department of Transportation (Caltrans) to receive Caltrans 2022 Priority Legislative Budget Project (PLPB) appropriation to fund Project No. 4299 Bicycle Lane Improvement Project.

Attachment(s):
(a) Resolution
(b) Fund Transfer Agreement

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RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS AUTHORIZING

EXECUTION OF ADMINISTERING AGENCY-STATE MASTER AGREEMENTS FOR STATE

AND FEDERAL-AID FUNDED PROJECTS
WHEREAS, the City of Milpitas is eligible to receive Federal and/or State funding for certain Transportation Projects through the California Department of Transportation; and, WHEREAS, Master Agreements, Program Supplemental Agreements, Fund Exchange Agreements and/or Fund Transfer Agreements must be executed with the California Department of Transportation before such funds can be claimed; and,
WHEREAS, the City of Milpitas wishes to delegate the authority to execute these agreements and any amendments thereto the City Manager.

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

1. The City Manager is hereby authorized to execute all Master Agreements, Program Supplemental Agreements, Fund Exchange Agreements and/or Fund Transfer Agreements, and any amendments thereto with the California Department of Transportation.

PASSED AND ADOPTED this ____ day of January 2024 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
_____________________________ __________________________ Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:
_____________________________
Michael Mutalipassi, City Attorney

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Project ID PLBP-5314(013)
Advantage ID 0423000451
Revised April 2023
Funds Transfer Agreement Between the California Department of Transportation and the City of Milpitas

1.1 The California Department of Transportation (Caltrans) and the City of Milpitas (the City) hereby enter into this Funds Transfer Agreement (Agreement) on the terms and conditions set forth below.

1.2 This Agreement is not valid until signed by both parties. This Agreement shall expire on City’s completion of its obligations under this Agreement but may be extended by amending this Agreement.

BACKGROUND

2.1 Section 19.56, subdivision (g)(1)(W) of the Budget Act of 2022 (the Act) appropriated $1,000,000 (the Funds) from the State General Fund to Caltrans, to be allocated to the City for the Milpitas Bike Lanes Facilities Enhancement.

2.2 Caltrans determined the best method for allocation to ensure the funds are used for the purposes specified in Section 19.56 of the Act is a funds transfer agreement.

2.3 The existing bicycle network in the City of Milpitas includes approximately 50 miles of bicycle lanes, buffered bicycle lanes, designated bicycle routes, and paved shared use paths. Over 30 miles of the bicycle facilities are on-street bikeways and are primarily located along major roadways with higher posted travel speeds and significant traffic volumes.

Abel Street, south of Jacklin Road, has a posted speed limit of 35 mph and currently has a combination of Class II bicycle lanes and designated bicycle facilities. Main Street, south of Weller Lane, has a posted speed limit of 30 mph, and has a combination of Class II bicycle lanes and no bicycle facilities. Milpitas Boulevard, south of Abel Street, has a posted speed limit of 35 mph, and has Class II bicycle lanes.

The Milpitas Bike Lanes Facilities Enhancement project’s goal is to improve the safety and reduce traffic stress for bicycle users along the Abel Street, Main Street, and Milpitas Boulevard corridors by eliminating bicycle facility gaps and upgrading existing bicycle facilities to promote bicycle use within the City.

SCOPE OF WORK

3.1 The Funds provided under this Agreement will be used for the administration, design, and implementation of: bicycle lanes, buffered bicycle lanes, designated bicycle routes, separated on-street bikeways, and associated

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2 Revised April 2023

roadway modifications, signage, pavement striping, and markings for the Milpitas Bike Lanes Facilities Enhancement (Project). Project limits are on N Abel Street from N Milpitas Boulevard to Marylinn Drive, Marylinn Drive from N Abel Street to Weller Lane, N Main Street from Weller Lane to Carlo Street, S Main Street from Carlo Street to Great Mall Parkway, and N Milpitas Boulevard from N Abel Street to E Calaveras Boulevard. Project deliverables include CEQA documentation, and Final Engineering plans and specifications, and construction of the project.

3.2 The City shall only use Funds for the Project specified in the Act. The City’s self- attestation verifying the intended use of funds shall be provided to the Department prior to the release of any funds.

FUNDING, COSTS, COST LIMITATION, & PAYMENT

4.1 The Funds will be encumbered within 2 days of the effective date of this Agreement. Pursuant to Section 19.56 of the Act, funds must be encumbered by June 30, 2024, and expended by June 30, 2026, or the funds will revert to the State’s General Fund by operation of law.

4.2 Payments shall be made as authorized by Sections 19.56(a) of the Act, including, but not limited to the provisions noted below:
a. Notwithstanding any other law, a designated state entity administering an allocation pursuant to this section may provide the allocation as an advance lump sum payment, and the allocation may be used to pay for costs incurred prior to the effective date of the act adding this paragraph.
b. Funding provided in this section shall not be used for a purpose subject to Section 8 of the Article XVI of California Constitution.

4.3 Within 30 days of expending all of the Funds or upon completion or termination of Project, whichever comes first, the City shall submit to Caltrans a Project Closeout Report. The Project Closeout Report at a minimum shall include a description of completed Project component(s) and a description of Project outcomes. Photographs of the Project are encouraged to be included.

4.4 Any Project costs paid using the Funds that are determined by subsequent audit to be unallowable under 48 CFR, Part 31 or 2 CFR, Part 200, are subject to repayment by the City to Caltrans.

4.5 The City shall return any unspent Funds to Caltrans at the conclusion, completion, or termination of the Project.

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3 Revised April 2023

4.6 Upon written demand by STATE, any overpayment to the City of amounts invoiced to CALTRANS shall be returned to STATE.

4.7 Should the City fail to refund any moneys due CALTRANS as provided herein or should the City breach this AGREEMENT by failing to complete Project without adequate justification and approval by STATE, then, within thirty (30) days of demand, or within such other period as may be agreed to in writing between the PARTIES, STATE, acting through the State Controller, the State Treasurer, the CTC or any other public entity or agency, may intercept, withhold and demand the transfer of an amount equal to the amounts paid by or owed to CALTRANS for each Project, from future apportionments or any other funds due [Agency Title] from the Highway Users Tax Fund or any other sources of funds, and/or may also withhold approval of future STATE-FUNDED projects proposed by ADMINISTERING AGENCY.

INQUIRIES & NOTICES

5.1 All inquiries during the term of this Agreement will be directed to the representatives listed below:

For Caltrans:

Name: Bahadur Singh
Address: 111 Grand Ave,
Oakland, CA, 94612
Phone Number: (510) 496-9543
Email:
[email protected]
For the City:

Name: Roberto Alonzo
Address: 455 E Calaveras Blvd,
Milpitas, CA, 95035
Phone Number: (408) 586-3316
Email: [email protected]

5.2 Each party may change their representative listed above upon 10 calendar days’ written or emailed notice to the other party and without the need for amending this Agreement.

OTHER TERMS & CONDITIONS

6.1 Drug-Free Workplace Requirements: the City will comply with the requirements of the Drug-Free Workplace Act of 1990 and will provide a drug- free workplace by taking the following actions:

a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations.

b. Establish a Drug-Free Awareness Program to inform employees about:

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4 Revised April 2023

1) the dangers of drug abuse in the workplace;
2) the person's or organization's policy of maintaining a drug-free workplace;
3) any available counseling, rehabilitation and employee assistance programs; and,
4) penalties that may be imposed upon employees for drug abuse violations.
c. Every employee who works on the proposed Agreement will:
1) receive a copy of the company's drug-free workplace policy statement; and,
2) agree to abide by the terms of the company's statement as a condition of employment on the Agreement.

Failure to comply with these requirements may result in suspension of payments under the Agreement or termination of the Agreement or both and the City may be ineligible for award of any future State agreements if Caltrans or the State Department of General Services determines that any of the following has occurred: the City has made false certification or violated the certification by failing to carry out the requirements as noted above. (Gov. Code §8350 et seq.)

6.2 Conflict o f Interest: The City needs to be aware of the following provisions regarding current or former state employees. If the City has any questions on the status of any person rendering services or involved with the Agreement, Caltrans must be contacted immediately for clarification.

Current State Employees (Pub. Contract Code §10410):
1). No officer or employee shall engage in any employment, activity or enterprise from which the officer or employee receives compensation or has a financial interest, and which is sponsored or funded by any state agency, unless the employment, activity or enterprise is required as a condition of regular state employment.

2). No officer or employee shall contract on his or her own behalf as an independent contractor with any state agency to provide goods or services.

Former State Employees (Pub. Contract Code §10411):
1). For the two-year period from the date, he or she left state employment, no former state officer or employee may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements or any part of the decision-

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making process relevant to the contract while employed in any capacity by any state agency.

2). For the twelve-month period from the date, he or she left state employment, no former state officer or employee may enter into a contract with any state agency if he or she was employed by that state agency in a policy-making position in the same general subject area as the proposed contract within the 12-month period prior to his or her leaving state service.

If the City violates any provisions of above paragraphs, such action by the City shall render this Agreement void. (Pub. Contract Code §10420.) If the Agreement is rendered void, [Agency Title] shall return all Funds.

6.3 Labor Code/Workers' Compensation: The City needs to be aware of the provisions which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions, and the City affirms to comply with such provisions before commencing the performance of the work described in this Agreement. (Labor Code § 3700.)

6.4. Americans With Disabilities Act: The City assures the State that it complies with the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. § 12101 et seq.)

6.5. The City Name Change: An amendment is required to change the City’s name as listed on this Agreement. Upon receipt of legal documentation of the name change the State will process the amendment. Payment of invoices presented with a new name cannot be paid prior to approval of said amendment.

6.6. Resolution: A county, city, district, or other local public body mu st provide the State with a copy of a resolution, order, motion, or ordinance of the local governing body which by law has authority to enter into an agreement, authorizing execution of the agreement.

6.7. Air o r Water Pollution Violation: Under State law, the City shall not be: (1) in violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; (2) subject to cease and desist order not subject to review issued pursuant to Section 13301 of the Water Code for violation of waste discharge requirements or discharge

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6 Revised April 2023

prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution.

6.8. Audit: The City agrees that Caltrans, the California Department of General Services, the California State Auditor’s Office, or other State agency with a legitimate business purpose, or their designated representative(s) shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. The City agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of record retention is stipulated.

6.9. Amendments : No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties. Any amendment signed by the City must be approved by its Board of Directors as evidenced by a resolution, order, motion, or ordinance of the City and a copy provided to Caltrans. No oral understanding or agreement not incorporated in the Agreement is binding on any of the parties.

6.10. Caltrans and the City shall continue with their responsibilities under this Agreement during any dispute.

6.11 This Agreement may be executed in separate counterparts.

6.12 An electronically signed copy of this Agreement shall have the same force and effect as if it were signed manually.

6.13 Should the City be declared to be in breach of this AGREEMENT or otherwise in default thereof by STATE, and if the City is constituted as a joint powers authority, special district, or any other public entity not directly receiving funds through the State Controller, CALTRANS is authorized to obtain reimbursement from whatever sources of funding are available, including the withholding or transfer of funds, pursuant to Article IV – 21, from those constituent entities comprising a joint powers authority or by bringing of an action against the City or its constituent member entities, to recover all funds provided by CALTRANS hereunder.

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State:

STATE OF CALIFORNIA

DEPARTMENT OF TRANSPORTATION
Printed Name: Ann Fox
Signature:

Deputy Director for Planning & Modal
Programs
Date:

Local Agency:

The City of Milpitas
Printed Name:

Signature:

Title:

Date:

Accounting Certification

Jie Chen
11/16/2023
$1,000,000.00

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Authorize the Surplus of City Vehicles and Authorize the City Manager to Execute a General Services Agreement with JJ Kane Auctioneers for the Surplus of City Assets (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602 and Lauren Lai, Finance Director, 408-586-3111) Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 1/23/2024
Recommendation: Authorize the surplus of City Vehicles and authorize the City Manager to execute a General Services Agreement with JJ Kane Auctioneers for the surplus of City assets in an amount not to exceed 5% of an assets auction price.

BACKGROUND:

The City is equipped with 270 vehicles and over 500 pieces of equipment to support the City operations. A total of thirty-one (31) vehicles are scheduled for surplus/disposal since they have reached the end of their useful life. In accordance with Purchasing Policy 1-2.7.03 – Disposal of Property with an Estimated Value of More Than Five Thousand Dollars ($5,000) – staff is seeking City Council approval for the disposal of the vehicles.

Public Works has no recent experience or data from vehicle auctions to provide present market value of these vehicles.

Additionally, staff is also recommending the execution of a general services agreement with JJ Kane Auctioneers to manage the sale of surplus City assets through a cooperative purchasing agreement with Omnia. JJ Kane Auctioneers is a turnkey auction house that provides full-service asset disposal for our region.

Full-service asset disposal includes transportation of vehicles/equipment from City facilities to the auction house, storage of vehicles/equipment prior to the auction, marketing for the auction through their various media outlets, and the actual sale of the vehicles/equipment. Other services include appraisal of vehicles/equipment, decommission and cleaning services of vehicles/equipment. Per the Omnia cooperative agreement, JJ Kane Auctioneers standard fee of the sale of consignment items will be priced at, not to exceed, five percent (5%).

ANALYSIS:

The surplus vehicles scheduled for disposal have reached the end of their useful life. Below is a chart with the year of the vehicle, asset/vehicle ID, make, model and department the vehicle is assigned to.

Year Fleet ID Make Model Department Useful Life
1989 F050 Ford F350 Brush Fire 8 years
1992 F051 Ford E350 Econoline Fire 10 years
2000 MD08 Kawasaki KZ1000 Police 3 years
2000 R443 Ford F150 Pickup Finance 7 years
2002 M002 Kawasaki KZ1000-P21 Police 5 years
2002 M006 Kawasaki KZ1000 Police 5 years
2002 J104 Ford E450 Super-duty Recreation 7 years
2005 M008 Honda ST1300P Police 3 years
2005 B264 Ford E350 Econoline Public Works (Parks) 6 years 2006 D009 Ford Mustang GT Police 5 years
2006 M001 Honda ST1300P Police 5 years
2006 C417 Ford Crown Victoria Code Enforcement 3 years
2006 Z406 Ford Taurus Public Works (Fleet) 5 years
2008 PT06 Ford E350 Econoline Police 5 years

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2009 C437 Ford Crown Victoria Code Enforcement 5 years
2009 M002 Honda ST1300P Police 5 years
2009 UN02 Toyota Camry Hybrid Police 6 years
2010 D032 Ford Crown Victoria Police 5 years
2011 PT16 Ford Crown Victoria Police 5 years
2011 PT21 Ford Crown Victoria Police 5 years
2011 PT28 Ford Crown Victoria Police 5 years
2014 PT15 Ford Interceptor Police 5 years
2014 PT17 Ford Interceptor Police 5 years
2014 PT26 Ford Interceptor Police 5 years
2014 PT27 Ford Interceptor Police 5 years
2014 PT29 Ford Interceptor Police 5 years
2014 PT30 Ford Interceptor Police 5 years
2015 PT01 Ford Interceptor Police 5 years
2015 PT11 Ford Explorer Police 5 years
2015 PT12 Ford Explorer Police 5 years
2017 PT07 Ford Explorer Police 5 years
POLICY ALTERNATIVE(S):

Alternative 1: Do not approve the surplus of vehicles.

Pros: None
Cons: Given that the City has procured many replacement vehicles, the inability to surplus the identified vehicles would create storage constraints and would forego any revenue proceeds generated by their sale.

Reason for Not Recommending: Staff recommends the surplus of these vehicles as a best practice performed by any municipal fleet operations as they reach the end of their useful life and are replaced by new inventory.

FISCAL IMPACT: The City would realize an undetermined amount of revenue by auctioning this surplus inventory. Auction proceeds would be deposited in Fund 500 – Equipment Replacement Fund to be expended for future vehicle and equipment purchases.

California Environmental Quality Act (CEQA):

By the definition provided in the CEQA Guidelines Section 15378, this action does not qualify as a “project” for the purpose of CEQA as this action has no potential to result in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

RECOMMENDATION:

Authorize the surplus of City Vehicles and authorize the City Manager to execute a General Services Agreement with JJ Kane Auctioneers for the surplus of City assets in an amount not to exceed 5% of an assets auction price.

Attachment(s):
a. Agreement with JJ Kane Associates, Inc.
b. Surplus Vehicle Schedule
c. Generic Surplus Property Resolution

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CITY OF MILPITAS

COOPERATIVELY PURCHASED

AGREEMENT FOR

AUCTION SERVICES

This
Cooperatively
Purchased

Agreement for

Auction

Services

(“Agreement”) is entered into as
of the
_______________

by and between the City of Milpitas, a municipal corporation organized under the laws of the State of California with its principal place of business at 455 E. Calaveras Boulevard, Milpitas, California 95035 (“City”) and
JJ Kane Associates, Inc.
, a
New Jersey Stock Corporation

with its principal
place of business at
33 Inverness Center Parkway, Birmingham, AL 35242

(“Contractor”). City and
Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement

RECITALS

WHEREAS, on

April 19, 2022
,
the
National Cooperative Purchase Alliance (now OMNIA
Partners)

awarded a contract to Contractor entitled

JJ Kane Associates,

Inc
.

(“Original Contract”)

f
or
Auction Services

pursuant to a competitive solicitation
process performed in accordance with the
competitive procurement rules applicable to

National Cooperative Purchase Alliance (now OMNIA
Partners)
; and

WHEREAS, pursuant to the
City
’
s

purchasing ordinance
, the
City

is authorized to utilize
cooperative
purchasing

to utilize contracts
based on an agreement or entered into by any public agency or cooperative purchasing program utilizing public agency procurements as the basis for contracts offered, regardless of whether the City is a named party to the agreement or an actual participant in such a program
;
and

WHEREAS, the Original Contract is listed in the
purchasing schedule offered by
OMNIA
Partners
, a
national

cooperative purchasing program; and

WHEREAS, the
City

desires to
rely on
the
Original
Contract

entered into between
National
Cooperative Purchase Alliance (now OMNIA Partners
)
and Contractor and procure
Auction

Services

on the same terms and conditions set forth
therein pursuant to this Agreement
.

NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows:

1. Recitals
. The foregoing recitals are true and correct and are a part of this Agreement
.

2. Term
.

The term of this Agreement shall be from
date first written

above

to
April 30,

2025
, unless earlier terminated as provided herein. The City reserves the right to review the Contractor’s performance at the end of each year and cancel all or part of the Agreement.

This
Agreement

may be
extended by the
City

for
an

additional
two (2) one
-
year terms upon mutual written consent of the
City

and
Contractor
.

3. Incorporation By Reference
.

The Scope of Services is attached hereto as Exhibit “A” and incorporated herein by this reference.

The Original Contract
,
including

all documents incorporated by
reference therein,
is attached hereto as Exhibit “B” and incorporated herein by this reference

–

all references
in the Original Contract to “
National
Cooperative Purchase Alliance (now OMNIA Partners
)
”
shall be
understood to mean the City of Milpitas
. T
he
Contractor
’
s

Proposal
is attached hereto as Exhibit “C” and
is
incorporated
herein
by reference
. The incorporation of the Original Contract and the Contractor’s Proposal as part of this Agreement is

subject to the order of
precedence

set forth below
.

4. Precedence of
Agreement

Documents
. If there is a conflict between
Agreement

documents, the document highest in precedence shall control. The precedence shall be:

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One
:

This
Agreement

Two
:

The Original Contract

Three
:

The
Contractor
’
s

Proposal

Amendments
, supplemental agreements, and approved revisions to the Agreement or any part thereof

become a part of item
One above
.

5. Obligations of the
City
.

The
City

shall be obligated to pay
Contractor

based upon the unit and/or lump sum
prices
set forth in the
Original Contract and/or the Contractor’s Proposal for services authorized by the City
.

Payments to the
Contractor

shall be made within 30 days after receipt of an original invoice from the
Contractor

and acceptance of the services by
City
.

In no event shall the total amount paid for this
Agreement

exceed
five (5) percent
per auction item

plus charges for transportation and other services as set forth in the price sheet for the original contract
unless otherwise agreed to by the parties in writing.

Commissions and charges for
transportation and other services shall be deducted from the City’s portion of the auction payment and shall not become due or payable until such time as the property has been sold and payment has been received.

In no ev
ent shall the total amount due and payable under this agreement, including but not limited to all commissions and charges, exceed eighty thousand dollars ($80,000).

City shall, at its own expense, maintain and carry in full force and effect appropriate insurance coverage
, as determined in its sole discretion,

on the Auction Items (defined in
Section 8) being sold hereunder until the day of auction sale. Contractor shall not be responsible for any damages to Auction Items resulting from casualty or acts of God while such Auction Items are located at the sale si
te. Contractor shall be responsible for any loss or damage to Auction Items due to Contractor’s willful or
negligence acts or omissions.

6. Obligations of the
Contractor
.

Contractor

shall perform
the Scope of Services
as required by this
Agreement
.

Contractor

shall obey all Federal, State, local, and special district laws, ordinances, and regulations.

Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "ma intenance" projects. If the Scope of
Services is being performed as part of an applicable "public works" or "maintenance" project, as defined by th
e Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless fro
m any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that af fect
Contractor’s performance of the Scope of Services, including any delay, shall be Contractor’s sole responsibility and Contractor shall indemnify City from liability arising out of the same. It shall be mandatory upon the Contractor and all subcontrac
tors to comply with all applicable California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Co de
Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815), contractor registration (Labor Code Sections 1725.5 and 1771.1) and debarment of contractors and subcontractors (Labor Code Sections 1777.1). The requirement to submit certi
fied payroll records directly to the Labor Commissioner under Labor Code section 1771.4 and to be registered with the California Department of Industrial Relations

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38077.00180
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shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1771.4, 1725.5 and 1771.1.

The
Contractor

shall keep a tally of the cost for the
services

ordered by
City
. The
Contractor

shall not accept work orders from the
City

if the cost for the work will exceed the amount
indicated above unless otherwise agreed to by the parties in writing.

7. Audit
.

City

shall have the option of inspecting and/or auditing all records and other written materials used by
Contractor

in preparing its statements to
City

as a condition precedent to any payment to
Contractor
.

8. Hold Harmless and Indemnification
.

Contractor shall defend, indemnify and hold the
City, its officials,
officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death

(collectively “Claims”),
,
to the extent any such Claims
are caused by
any
willful misconduct
, reckless, or
negligent
acts, errors or omissions of Contractor, its
officials, officers, employees, subcontractors, consultants or agents in connection with the performance of
the Contractor’s services
pursuant to
this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses

that
are comparatively allocable to Contractor pursuant to this indemnity .

However, the
defense and hold
harmless
obligations in the preceding sentence shall not apply to Claims arising out of or related to (a) City’s ownership and maintenance (or lack thereof) of the Auction Items (defined below), (b) th e condition
of the Auction Items at time of auction, (c) any title defects or delays in delivering free and clear title to the Auction Items, (e) any breach of this Agreement by Seller, or (f) any violations by City of applicable state and federal laws, in
cluding, without limitation, state and federal emissions laws and regulations (which, as between City and Contractor, are the sole responsibility of City).

Notwithstanding the foregoing, to the
extent Contractor's Services are subject to Civil Code Section

2782.8, the above indemnity shall be limited,
to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.

used

this

Agreement,

“Auction

Items”

means

the

property

identified

City

for

Contractor

facilitate

the

sale

public

absolute

auction.

9. Amendments
. Any amendment, modification, or variation from the terms of this Agreement

shall be in writing and shall be effective only upon mutual written approval by the City

and
Contractor
.

10. Anti
-
Discrimination
. In the performance of the terms of this
Agreement
,
Contractor

shall
not engage in, nor permit subcontractors to engage in, discrimination in employment of persons because of the age, race, color, religious creed, sex, sexual orientation, national origin, ancestry, physical disability, mental disability, medical cond
ition, or marital status of such persons.

11. Termination
.

City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before

the effective date of such
termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished documents and data and other information of any kind prepared by Contractor in connection
with the performance of services under this Agreement.

Contractor shall be required to provide such documents and other information within fifteen (15) days of the request. The Contractor understands and accepts that at all times; the Agreement is subjec t to
appropriation of funds by the Milpitas City Council. The Agreement may terminate without penalty, liability or expense of any kind to the City at the end of any fiscal year if funds are not appropriated for the

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next succeeding fiscal year. If funds are appropriated for a portion of the fiscal year, the Agreement will terminate, without penalty, liability or expense of any kind at the end of the term for which funds are appropriated. The City has no obligation to
make appropriations for the Agreement in lieu of appropriations for new or other agreements. City budget decisions are subject to the discretion of the Mayor and City Council. Contractor’s assumption of risk of possible non -
appropriation is a part of the
consideration for
the Agreement. This section controls against any and all other provisions of the Agreement

12. Complete
Contract
. This
Agreement

shall constitute the complete
Agreement

between
the parties hereto. No verbal agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such verbal agreement, understanding, or representation be bindin
g upon the parties hereto.

13. Time of Performance
. Time is of the essence in this
Agreement
.

14. Successors and Assigns
. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto; provided, however, that no party hereto shall assign any of the benefits and burdens hereunder, whether voluntarily or by operation of l aw, without the prior written
consent of the other party, and any such assignment without said consent shall be void.

15. Authority to Execute Contract
. Both
City

and
Contractor

do covenant that each
individual executing this
Agreement

on behalf of each party is a person duly authorized and empowered to execute contracts for such party.

16. Insurance
.

Contractor shall not commence work for the City until it has provided evidence
satisfactory to the City it has secured all insurance required under Exhibit “D” (Insurance Requirements), attached hereto and incorporated herein by this reference. In addition, Contractor shall not allow any subcontractor to commence wo
rk on any subcontract until it has secured all insurance required therein.

17. Jurisdiction and Venue
. Jurisdiction is in the State of California and venue lies in Santa
Clara

County.

18. Wage Theft Prevention
. Contractor, and any subcontractor it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws.

Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California
Labor Code and the Milpitas Minimum Wage Ordinance. BY SIGNING THIS AGREEMENT,

CONTRACTOR AFFIRMS THAT IT HAS DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR

ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDI

NG IN THE
FIVE (5) YEARS PRIOR TO EXECUTING THIS AGREEMENT THAT CONTRACTOR OR ITS SUBCONTRACTORS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS.

CONTRACTOR FURTHER AFFIRMS THAT IT OR ITS SUBCONTRACTOR(S) HAS EITHER

FULLY SATISFIED EACH JUDGMENT, DECISION

OR ORDER, OR, IF ANY JUDGMENT,

DECISION OR ORDER HAS NOT BEEN FULLY SATISFIED, CONTRACTOR AFFIRMS THAT IT

OR ITS SUBCONTRACTOR(S) IS CURRENTLY SATISFYING SAID JUDGMENT, DECISION OR

ORDER THROUGH A PAYMENT OR ALTERNATIVE PLAN APPROVED BY THE APPLICABLE COU

RT/GOVERNMENT AGENCY AND THAT CONTRACTOR OR ITS SUBCONTRACTOR(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.

If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgm
ent, decision or order finding that Contractor or a subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or Contractor learns of such a judgment, decision, or order that was not previously disclosed i
n its bid/proposal, Contractor shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order. Contractor or its subcontractor(s) shal l, within thirty
(30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and

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Milpitas City CouncilJanuary 23, 2024

Milpitas City Council
January 23, 2024