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Agreement - David J. Powers & Associates, Inc. - 10th Street Bridge Environmental - Signed 2023-05-01 -1- 4835-2267-0361v1 LAC\04706083 AGREEMENT FOR SERVICES (For contracts over $5,000 - CONSULTANT) This AGREEMENT made this 1st day of May, 2023, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: David J. Powers & Associates, Inc., having a principal place of business at 1871 The Alameda, Suite 200, San Jose, CA 95126. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on May 1, 2023 and will continue in effect through completion of the scope of work unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall terminate this Agreement regardless of any other provision stated herein. ______ Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties acknowledge that CONSULTANT is not an employee for state or federal tax purposes. CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY’S employees, including, without limitation, disability or unemployment insurance, workers’ compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONSULTANT shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT A. Specific Services CONSULTANT agrees to: Perform the services as outlined in Exhibit “A” (“Specific Provisions”) and Exhibit “B” (“Scope of Services”), within the time periods described in Exhibit “C” (“Milestone Schedule”). B. Method of Performing Services CONSULTANT shall determine the method, details and means of performing the above-described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT’S services. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -2- 4835-2267-0361v1 LAC\04706083 C. Employment of Assistants CONSULTANT may, at the CONSULTANT’S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT’S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT’S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit “D” (“Payment Schedule”). In no event however shall the total compensation paid to CONSULTANT exceed $360,069. B. Invoices CONSULTANT shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment will be made unless CONSULTANT has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit “A”, Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONSULTANT shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT’S costs of doing business. CITY shall not be responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -3- 4835-2267-0361v1 LAC\04706083 ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers’ Compensation CONSULTANT agrees to provide workers’ compensation insurance for CONSULTANT’S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys’ fees, arising out of any injury, disability, or death of any of CONSULTANT’S employees. C. Indemnification of Liability, Duty to Defend 1. As to professional liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, to the extent arising or resulting directly or indirectly from any willful or negligent acts, errors or omissions of CONSULTANT or CONSULTANT’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. 2. As to other liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, arising or resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -4- 4835-2267-0361v1 LAC\04706083 set forth below. Professional Liability Insurance written on a claims made basis (including without limitation the initial policy obtained and all subsequent policies purchased as renewals or replacements) must show the retroactive date, and the retroactive date must be before the earlier of the effective date of the contract or the beginning of the contract work. Claims made Professional Liability Insurance must be maintained, and written evidence of insurance must be provided, for at least five (5) years after the completion of the contract work. If claims made coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the earlier of the effective date of the contract or the beginning of the contract work, CONSULTANT must purchase so called “extended reporting” or “tail” coverage for a minimum of five (5) years after completion of work, which must also show a retroactive date that is before the earlier of the effective date of the contract or the beginning of the contract work. As a condition precedent to CITY’S obligations under this Agreement, CONSULTANT shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONSULTANT is not CITY’S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONSULTANT’S payments; • CITY will not make state or federal unemployment insurance contributions on CONSULTANT’S behalf; • CITY will not withhold state or federal income tax from payment to CONSULTANT; • CITY will not make disability insurance contributions on behalf of CONSULTANT; • CITY will not obtain workers’ compensation insurance on behalf of CONSULTANT. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -5- 4835-2267-0361v1 LAC\04706083 ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT’S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT’S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of Consultant’s Business/ Death of Consultant. CONSULTANT shall notify CITY of the proposed sale of CONSULTANT’s business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY’ receipt of such notice of sale. If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT. B. Termination by City for Default of Consultant Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY’S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONSULTANT’S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONSULTANT’S breach of any of its representations, warranties or covenants contained in this Agreement. CONSULTANT shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C” which have been fully, competently and timely rendered by CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONSULTANT’S default in the performance of this Agreement or material breach by CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -6- 4835-2267-0361v1 LAC\04706083 may have, CONSULTANT shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONSULTANT for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed-Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONSULTANT, at the CONSULTANT’S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY. D. Transition after Termination Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONSULTANT’s duties by any new consultant hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 (“the Act”) in its current form and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys’ fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys’ Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -7- 4835-2267-0361v1 LAC\04706083 attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. F. Conflict of Interest CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -8- 4835-2267-0361v1 LAC\04706083 H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit “A”, Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. Waiver CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONSULTANT: CITY: David J. Powers & Associates, Inc. CITY OF GILROY By: By: Name: Akoni Danielsen Name: Jimmy Forbis Title: President Title: City Administrator Social Security or Taxpayer Identification Number 77-0219577 DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -9- 4835-2267-0361v1 LAC\04706083 Approved as to Form ATTEST: City Attorney City Clerk DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “A” SPECIFIC PROVISIONS I. PROJECT MANAGER CONSULTANT shall provide the services indicated on the attached Exhibit “B”, Scope of Services (“Services”). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONSULTANT agrees to assign Patrick Kallas, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written “Notice to Proceed”, which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Melissa Durkin shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as provided in the Section V.H. (“Notices”) of this Exhibit “A”. B. COMPLETION OF SERVICES When CITY determines that CONSULTANT has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not completed all of such Services as required by this Agreement, CITY shall so inform CONSULTANT within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit “C”. IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -2- 4835-2267-0361v1 LAC\04706083 Direct expenses are charges and fees not included in Exhibit “B”. CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT’S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONSULTANT shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY’S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONSULTANT’S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at the CITY’s offices within five (5) business days after CITY’s request. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -3- 4835-2267-0361v1 LAC\04706083 D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONSULTANT and all other written and oral information developed or received by or for CONSULTANT and all other written and oral information submitted to CONSULTANT in connection with the performance of this Agreement shall be held confidential by CONSULTANT and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONSULTANT’S disclosure thereof) shall be deemed confidential. CONSULTANT shall not use CITY’S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY’S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONSULTANT may retain and use copies thereof subject to Section V.D of this Exhibit “A”. CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONSULTANT shall not be responsible for, and City shall indemnify CONSULTANT from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -4- 4835-2267-0361v1 LAC\04706083 H. NOTICES. Notices are to be sent as follows: CITY: Sharon Goei City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: Akoni Danielsen David J. Powers & Associates, Inc. 1871 The Alameda, Suite 200 San Jose, CA 95126 I. FEDERAL FUNDING REQUIREMENTS. If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. 1. DBE Program CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City-adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONSULTANT warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONSULTANT, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “B” SCOPE OF SERVICES Attached. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 1 10TH STREET BRIDGE AT UVAS CREEK NEPA/CEQA COMPLIANCE & PERMITTING UPDATED APPROACH AND SCOPE July 8, 2022 PROJECT DESCRIPTION The 10th Street Bridge at Uvas Creek Project (Project) would connect two existing segments of 10th Street in the City of Gilroy by constructing a bridge over Uvas Creek. Improvements to 10th Street and other nearby roadways are also included in the Project.1 The Project would implement a key improvement to the City’s transportation network as identified in the Gilroy General Plan. Project Components The components of the Project are described as follows: 10th Street Bridge at Uvas Creek: A new bridge would be constructed over Uvas Creek that would connect two existing segments of 10th Street. The new bridge would have a width of approximately 74 feet and a length of approximately 315 feet. It would include two vehicular traffic lanes, a median to accommodate nearby intersections as well as shielded bicycle lanes and pedestrian sidewalks on both sides. The bridge would be a 3- span structure. The piers and abutments would be located outside of the low-flow channel of Uvas Creek. To accommodate the new bridge, the profile of 10th Street and Uvas Park Drive would be raised on approach embankments. Uvas Creek Levee Trail “Breezeway” Bridge and Connections: This component of the Project would consist of a short (31-foot long) bridge on 10th Street immediately east of the proposed Uvas Creek bridge. The bridge would be located behind the east levee of Uvas Creek and would allow users of the Uvas Creek Levee Trail to pass unimpeded under 10th Street. Connections between 10th Street and the trail would also be constructed to accommodate those cyclists and pedestrians entering or exiting the trail at that location. Uvas Creek Levee Trail Realignment: To accommodate the proposed bridge, as well as to improve public safety and accommodate the request of the Santa Clara Valley Water District to shift the levee to match the new “back of walk”, a short segment of the Uvas Creek Levee Trail north and south of 10th Street would be realigned. 1 Uvas Creek is assumed to flow in a north-south orientation and 10th Street is assumed to be oriented in an east-west direction. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 2 10th Street/Orchard Drive Intersection and Crosswalk Improvements: To accommodate the realignment of 10th Street and to improve intersection safety, the curb returns and driveway at Gilroy High School will be reconstructed. Minor improvements to the High School driveway/parking lot entrance are proposed to match grade and connect the sidewalks. 10th Street/Uvas Park Drive Roundabout: A roundabout would be constructed at the intersection of 10th Street and Uvas Park Drive. 10th Street Improvements: Between De Anza Place on the west and Orchard Drive on the east, improvements to 10th Street would be constructed as needed. These improvements would consist of sidewalks, bikeways, crosswalks, restriping, signing, curb-and-gutter, storm drain, lighting, and repaving. Construction Phasing To accommodate winter flows in Uvas Creek, the proposed project work activities would be built in two construction stages (Stage 1 and Stage 2) between April 15 and December 31. Prior to these construction stages for the bridge work, site preparations for this work would be completed including but not limited to tree removal, grading of access roads, and creation of work pads outside the creek/levee. Stage 1 Bridge Construction: This would include construction of the 10th Street Bridge foundation systems, which would be built outside of the active flow channel of Uvas Creek. This stage also includes construction of any temporary foundations to support temporary falsework supports, desired by the contractor, to build the overhead bridge superstructures in Stage 2. In this stage, approximately 32 abutment piles, and 6 intermediate support columns (all piles constructed to a depth of approximately 40 feet below ground surface) for the larger 10th Street Bridge would be completed by December 31. In the case of the much smaller Breezeway Bridge, which is located outside the riparian corridor, it is anticipated that only the deep piles would be installed in Stage 1. The abutments and wing walls may not be constructed in Stage 1 because these components could limit access for construction of the 10th Street Bridge. See discussion in Stage 2 for more information. Stage 1 construction would also include installation of underground piles for the Breezeway Bridge, which would include 16 piles at a depth of approximately 40 feet below ground surface. Stage 1 Roadway and Levee Construction: In addition to the bridge construction undertaken in Stage 1, roadway and drainage work will likely be constructed. Because the project requires a fair amount of import borrow to build the approach embankments, design engineers anticipate the Contractor could time construction of the 10th Street project to coincide with other projects that same Contractor may be undertaking elsewhere which are generating “excess material”. This approach could benefit the DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 3 Contractor by allowing them to enjoy efficiency thereby making them the “low-bidder”, but the availability of the material may control their project approach and schedule regarding “how much roadwork” they build in Stage 1. Because the clayey material over-excavated from the subgrade for the roadway conforms will be used in the reconstructed levees, engineers anticipate the levee construction occurs coincident with the construction of the roadway conforms. This could be either Stage 1 or Stage 2. Stage 2 Bridge Construction: This would include the construction of the approximately 315-foot-long 10th Street Bridge. This stage would start with the placement of temporary supports (falsework). The center portion of this falsework would span the Uvas Creek active flow channel and could be supported on piles constructed in Stage 1. The falsework would include minor earthwork to create level dirt pads to support this falsework system. Falsework placed adjacent to the 25-year flood event zone would be required for approximately eight months (between April 15 to December 31) and would be installed during the dry season. All falsework and leveling pads would be removed, and the temporary piles would be cut off below grade by December 31. No work would occur during rain events and no pile driving would occur after October 31. Erosion control measures would be installed at the end of the dry season and additional measures would be employed 24 hours prior to a forecasted rain event. After the superstructure of the 10th Street Bridge is constructed, construction of the Breezeway Bridge would begin and continue through winter months using appropriate erosion and sediment control BMPs. The bridge would be built on top of the piles already constructed in Stage 1. Stage 2 Roadway/Levee Construction: Outside the footprint of the bridges, construction will continue on the partially completed roadway, trail and drainage improvements which were begun in Stage 1. Because the bridge construction will require a fair amount of laydown room, and because the Contractor will likely want to use the unpaved roadway. trail approaches for staging materials and equipment, engineers anticipate the paving will occur late in the project. At the time this “Project Description” was prepared, engineers anticipated that the Contractor will be able to work double-shifts or perhaps ‘round the clock during key operation for the bridge work in order to provide enough “cure time” for the various concrete pours. Up to 3 months of “cure” time could be required within the April 15 to December 31 work windows over the creek. Engineers anticipate that progress on the bridge work will affect the roadway work because the Contractor may not want to complete the approach roadways until after the bridges are complete in order to protect the finished work. Should restrictions be placed on construction methods which limit work hours, nighttime construction lighting, noise, or other factors which control the Contractor’s progress, the final roadwork may have to occur after December 31, as weather permits. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 4 Traffic and Construction Detours Since the proposed 10th Street and Breezeway Bridges are located away from active roadways, the Project does not anticipate the need for construction detours for construction of the vehicular and pedestrian/cyclist bridges. The bridge and levee modification would be constructed before the elevated roadway approaches and roundabout are built. Roadwork necessary for the construction of the approach fills and roundabout would require Uvas Park Drive to be temporarily closed at Miller Street and 10th Street to be closed at Orchard Drive for approximately 12 months. Due to potential hazards to pedestrians from construction activities, the Uvas Creek Levee Trails on both sides of Uvas Creek would be temporarily closed until the bridges are substantially complete. It is anticipated that the trail closure would coincide with Stage 2 Bridge Construction and be approximately six months, but the closure could be longer, depending on the amount of work the Contractor completes in Stage 1. It could be that the partially constructed project is not available for public use, and in the interest of safety (and to provide significant cost savings) the trail closures would remain in place through all of Stage 1 and Stage 2. Construction Access and Laydown Areas Bridge construction would require the use of large heavy equipment and large amounts of construction material that would require the use of large laydown areas for construction staging. Uvas Park Drive Parking Area: The temporary event parking area between Uvas Park Drive and the Valley Water levee that was formally used when the annual Gilroy Garlic Festival was held at Christmas Hill Park would be utilized as a construction access and laydown area for the Project. It is anticipated that this staging area would be needed for approximately 30 months. On the west side of the creek, engineers envision construction access is from the following points: Christmas Hill Park: Construction access would be required through Christmas Hill Park, for construction of the bridge foundations, support columns, and erection of falsework for the construction of the bridge structure. It is anticipated that a portion of Christmas Hill Park south of the amphitheater would be temporarily closed for approximately 18 months to provide construction access. “Old Road” on west side of 10th St, north De Anza Place: To provide a route for the delivery of “smaller things”, construction access will be provided from the existing “stub” of 10th Street, descending down the old existing asphalt road on the west side of 10th St. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 5 To provide overhead clearance, engineers envision trees will need to be trimmed and perhaps the old roadway resurfaced. While this access is not likely feasible for large trucks and trailers, it provides an efficient route for smaller equipment along with material and personnel from the 10th Street corridor Paved Trail: Intersection of De Anza Place / Lopez Way: Constructed as part of the Glen Loma Development, a paved trail now exists at the intersection of De Anza Place / Lopez Way, descending from the retention basin to the west bank of Uvas Creek. Engineers envision that this trail could be reconfigured to accommodate construction traffic should it be needed. At the end of the project, the trail may need to be repaved / repaired to restore it to pre-construction condition. TASK 1: SCOPING David J. Powers & Associates (DJP&A) will attend up to two project team meetings and two site visits to provide the design team with information regarding environmental issues and constraints. TASK 2: NEPA COMPLIANCE Since the project will utilize federal funds, compliance with the National Environmental Policy Act (NEPA) and related federal statutes will be required. DJP&A will undertake the required studies, following the Caltrans Office of Local Assistance procedures and utilizing the formats published on the Caltrans Standard Environmental Reference (SER) website. DJP&A will complete Preliminary Environmental Study (PES) forms and attachments and attend the Caltrans field review meeting. Following the field review, Caltrans will determine the level of environmental review necessary, and the technical studies required to be prepared. This scope assumes the project will qualify for a Categorical Exclusion (CE) under NEPA and the following technical studies and memos will be required. All of the following technical studies and memos will be prepared by DJP&A or a subconsultant under contract to DJP&A, except for the Location Hydraulic Study, which will be prepared by the project engineer and provided to DJP&A. • Air Quality and Greenhouse Gas Assessment • Noise Study Report • Archaeological Resources Report • Historic Properties Survey Report • Natural Environment Study • Biological Assessment • Traffic Memo • Location Hydraulic Study • Initial Site Assessment • Visual Impact Assessment (Minor) DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 6 • Equipment Staging Memo • Water Quality Memo • Right-of-Way/Community Impacts Memo • Section 4(f) Concurrence Letter The scopes for the studies to be prepared by DJP&A or our subconsultants are described below. Task 2a: Air Quality and Greenhouse Gas Assessment This task will be undertaken by Illingworth & Rodkin (I&R), a subconsultant of DJP&A that specializes in air quality analyses that comply with Caltrans standards. The air quality and greenhouse gas assessment will include the following components: Setting - Develop baseline conditions that describe meteorology/climate of the project area, existing air quality conditions, federal, state and local air quality rules and regulations, and approved air quality plans. Air pollutants and their effect on human health will also be described. Construction Air Quality Impacts - A construction emissions assessment will be conducted for all elements of the project, including the bicycle and pedestrian portions. Construction emissions will be quantified using the Sacramento AQMD Road Construction Emissions Model (Version 8.1.0) and will include analysis of construction- period GHG emissions (CO2, CH4, N2O, and CO2e. Mitigation and minimization methods will be discussed to reduce the project’s emissions Regional Air Quality Impacts - Identify SIP conformity requirements for the project and develop conformity language suitable for the air quality analysis. This will include consultation with MTC, Santa Clara Valley Transportation Authority, and Caltrans regarding project inclusion in the latest transportation plans and programs. CO Hot Spot Analysis - A qualitative discussion will be included to address CO since the project has now been designated attainment by U.S. EPA. Assess Project Air Pollutant and GHG Emissions - Use CT-EMFAC along with traffic data to predict daily air pollutant and annual GHG emissions. Project and no project emissions will be computed and evaluated based on current State and local guidance. The effect of transportation control measures in reducing project emissions will be described. Note that special traffic inputs are required, and Caltrans should be consulted to confirm these inputs. Mobile Source Air Toxics - Use the FHWA guidance procedures to address MSAT emissions from the project. This task will involve the computation of MSAT emissions using the latest version of the CT-EMFAC model. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 7 PM2.5 Analysis - PM2.5 will be analyzed based on the latest FHWA Guidance. A determination of the project’s designation as to whether it will be considered a project of air quality concern (POAQC) or not will be completed through consultation with statewide Air Quality task force. If the project is found not to be a POAQC, then a qualitative analysis will be conducted following the guidance outlined in the FHWA PM2.5/PM10 Guidance. Health Risk Assessment - Use construction and roadway toxic air contaminant and PM2.5 emissions with the U.S. EPA AERMOD model to assess local health risk impacts per BAAQMD guidance in their CEQA Air Quality Guidelines. Deliverables - An air quality technical report will be prepared using Caltrans format and will address the FHWA/Caltrans requirements. Task 2b: Noise Study Report A traffic noise study will be conducted in accordance with the Traffic Noise Analysis Protocol developed by Caltrans. The protocol requires identification of noise impacts at different types of activity areas affected by the project. The noise study will address both the State and Federal noise abatement criteria. This task will be undertaken by Illingworth & Rodkin (I&R), a subconsultant of DJP&A that specializes in noise analyses that comply with Caltrans standards. The noise study report includes the following components: Existing Ambient Noise Environment - Ambient noise measurements were completed in April 2017 along the project corridor. These measurements included two long-term and six short-term measurements. On the east side of Uvas Creek, no major construction projects have been completed since 2017 that will cause a substantial increase in noise levels. To the west of the creek, residential construction, which was on-going at the time of the measurements in 2017 has continued; however, 10th Street does not yet extend to Santa Teresa Boulevard. Therefore, only local traffic accessing the residential development would be expected. Considering construction vehicles were the main noise source in 2017, the traffic noise will not be substantially different. New noise measurements will not be necessary. Model Noise Levels - FHWA’s TNM will be used to predict noise levels with and without the project. Traffic noise modeling will be conducted in accordance with the Caltrans recommended procedures.1 The previously developed models will be updated to reflect the updated project plans and traffic conditions. These updated future model will be used to predict future noise levels. Noise Barrier Analysis - Where noise impacts are identified, noise abatement will be considered for feasibility and reasonableness per Caltrans Noise Policy. A feasible noise barrier would achieve a minimum 5 dBA of noise reduction. A noise barrier must also provide a minimum 7 dBA of noise reduction at one receptor to meet the reasonableness design goal. Reasonableness of noise abatement/mitigation measures is not determined in the NSR; however, information that would assist the Project Engineer in determining DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 8 reasonableness would be provided. The reasonableness cost allowance of feasible noise barriers will be calculated based on procedures outlined in the Caltrans Traffic Noise Analysis Protocol. Construction Noise and Vibration - Noise and vibration levels at nearby sensitive land uses will be calculated for each phase of construction. Construction noise will be predicted using methods outlined in the Protocol that utilize the Roadway Construction Noise Model (RCNM). Construction vibration levels would be calculated based on published data. The calculations would depend on the availability of construction plans and schedules. Hydroacoustic Assessment - If determined to be necessary, a hydroacoustic assessment will be prepared by I&R to assess impacts to fish species in Uvas Creek potentially impacted by noise. Preparation of the hydroacoustic analysis includes quantifying existing hydroacoustic levels in the project area and predicting sound levels that would be generated in the water during pile driving. Deliverables - A Noise Study Report, in Caltrans format, would be prepared and submitted to local agencies and Caltrans. Task 2c: Cultural Resources Studies Archaeological Survey Report (ASR) This task will be undertaken by Albion Environmental, Inc., a subconsultant of DJP&A that specializes in cultural resource assessment that comply with Caltrans standards and Section 106 of the National Historic Preservation Act. Area of Potential Effect (APE) Map - Albion will work with the City of Gilroy, Caltrans, and David J. Powers & Associates to define archaeological and architectural APEs for the project. David J. Powers will submit draft APE maps to Caltrans for approval prior to the initiation of the archaeological survey. Archival Research - A record search will be requested from the Northwest Information Center, Sonoma State University, Rohnert Park, to include the APE and a 1/2-mile radius around it. Albion will also gather archival maps of the area and consult historic aerial photography archived by the library at the University of California to locate any structures or other features on the landscape within the APE. Additionally, environmental factors such as surface slope, distance to known perennial water sources, and the distance to perennial stream confluences, combined with relevant data from soil surveys and Quaternary geology maps to estimate the age and extent of the deposits exposed at the surface within the APE, and provide guidance for determining the general sensitivity for buried archaeological sites to exist within the APE. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 9 Native American Consultation - A working relationship with the Native American community and individual Tribal representatives is essential to the success of the cultural resource inventory effort, and ultimately project success. As part of this project, the Tribes and individuals identified by the NAHC will be contacted by Albion to inform them about the Project, ascertain Tribal interests and information, and open dialog to elicit and consider their concerns about the treatment of precolonial archaeological materials, particularly ancestral remains and grave goods. Archaeological Survey - An on-foot archaeological survey of the project area will be undertaken. All open areas (not covered by asphalt and concrete) will be inspected for such cultural evidence as historic artifacts and features and prehistoric indicators like midden soil, flaked lithics, groundstone, and shell. Any necessary standard DPR 523 forms (Primary Record and Archaeological Site Record) will be completed. The ASR will be submitted to Caltrans for review, and revisions will be made as necessary. Deliverables - Draft and Final ASRs. An ASR for submission by the City of Gilroy to Caltrans will be prepared following the guidelines in the Caltrans SER, Volume 2, Exhibit 5.1. It will include a summary of the records search results, Native American consultations, brief historic and ethnographic background sections, description of field methodology, results of the survey, and necessary maps. It will also include any site records prepared for the project area. Historic Properties Survey Report (HPSR) The HPSR is a summary report that includes the final draft of the APE map, discusses documentation efforts, the findings of the ASR (and, if necessary, an Extended Phase I ASR), and summarizes the National Register eligibility conclusions for cultural resources. The document also provides evidence of coordination with Native American groups, local government, and other interested persons and organizations, and requests the concurrence of the State Office of Historic Preservation if needed. The final draft of the ASR will be attached as an appendix. The HPSR and appendices will be submitted to Caltrans PQS for review and revisions will be made as necessary. Deliverables - Draft and Final HPSRs and appendices for submission to Caltrans will be prepared, following the guidelines in the Caltrans SER, Volume 2, Exhibit 2.6. AB 52 Consultation Notice Letters - After obtaining a list of Native American stakeholders from the City, Albion will draft the formal AB 52 Notice Letters and send them to the City; the City will mail the letters on official City letterhead. This Notice to Tribes will include a brief project description, a map of the project location, lead agency contact information, and a statement that the Tribe has 30 days to request consultation. It is best practice to follow up Formal Consultation Notices with emails and phone calls. At the City’s request, Albion will follow up with the Tribes via email and/or phone. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 10 Consultation Meetings - Within 30 days of receiving a Tribe’s written request for consultation, Albion will assist the City in the consultation process. As part of the consultation process, Tribes may request meetings to discuss Tribal Cultural Resources, project alternatives, significant effects, and the development of mitigation measures to avoid or mitigate a significant effect. Albion will facilitate these meetings, documenting the discussions between the City and the Tribes. Deliverables - After consultation ends, Albion will prepare a report documenting all communications with the Tribes, discussing if any potential Tribal Cultural Resources were identified during the consultation process, documenting any additional concerns that the Tribal members may have with regards to the proposed work, and documenting any measures developed to avoid or mitigate a significant effect on a TCR to be included in the environmental document. The report will follow AB 52 requirements and ensure that any confidential information submitted by a California Native American Tribe during the consultation process will not be included in the publicly available environmental document or otherwise disclosed. Task 2d: Biological Resources Studies This task will be undertaken by H.T. Harvey & Associates (HTH), a subconsultant of DJP&A that specializes in biological resource assessments that comply with Caltrans standards and the Endangered Species Act. Natural Environment Study (NES) HTH will prepare an NES per Caltrans Office of Local Assistance procedures and the latest template (currently dated June 2020) on the Caltrans Standard Environmental Reference (SER) website. NES preparation will involve the following tasks: Background Review – HTH ecologists will review the most recent project plans, biological reports prepared for other projects in the project vicinity, the Santa Clara Valley Habitat Plan, and additional sources of information for any updates on applicable regulations, special-status species listing designations, or occurrences of special-status species in the project vicinity. These sources may include U.S. Geological Survey quadrangle maps, U.S. Fish and Wildlife Service (USFWS) National Wetland Inventory Maps, the California Natural Diversity Database (CNDDB), other technical literature related to the biotic resources of the project vicinity, regional planning documents (such as General Plan policies), species data compiled by the California Native Plant Society (CNPS) or other public interest groups, and resource agency data. Field Surveys - A plant/wetlands ecologist and a wildlife ecologist will conduct a single reconnaissance-level field survey of the project site to put into context the information generated in during the Background Review; to identify any changes in existing biological resources conditions that have occurred since our previous site visits in May 2017; and to assess and map biological resources in any limited portions of the project area that DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 11 were not covered previously. These ecologists will describe and map any changes in biotic communities/land cover types, boundaries of potentially sensitive or regulated habitats, or habitat for or evidence of special-status species that have occurred since their previous work on the project site or that need to be added to our previous work based on slight changes in the extent of the project. The habitat mapping will be adequate to identify the boundaries of any land cover types for CEQA/NEPA assessment and VHP permitting. During the field visit, the wildlife ecologist will conduct habitat surveys for the least Bell’s vireo and tricolored blackbird per VHP Conditions 16 and 17, respectively. Per VHP requirements, these surveys will cover the project area plus a 250-foot radius around the project area. The 2017 field surveys determined that no suitable breeding habitat for these species was present in or adjacent to the project area, but these habitat surveys will be updated to ensure that the VHP application is based on current data. No other species- specific surveys are proposed at this time. Prepare NES - The data collected during our background review and field surveys will be used as the basis for preparing an NES per current Caltrans guidelines. Graphics will be produced to portray the site vicinity, habitat types, CNDDB records for special-status species, impact areas, and, if appropriate, proposed mitigation sites. Deliverables - The NES will be submitted for review and comment. This task also includes time to respond to comments from Caltrans, assuming the comments do not require major revisions. Biological Assessment Although the project will be covered by the VHP, federally listed species regulated by NMFS are not covered by the VHP. We understand that NMFS, USACE, and the Santa Clara Valley Habitat Agency (SCVHA) are working on a Programmatic Biological Opinion (PBO) that would provide FESA Section 7 incidental take coverage for VHP-covered projects that meet certain criteria. However, that PBO has not yet been finalized, and some FESA Section 7 consultation between Caltrans (acting as the lead federal agency, on behalf of the Federal Highway Administration) and the USFWS and NMFS will be necessary for the project. HTH will prepare two documents to facilitate FESA consultation for the project: • A Biological Assessment (BA), in accordance with the latest Caltrans procedures and template, describing the project’s impacts on the South-Central California Coast steelhead. This federally listed (threatened) species is known to occur in the reach of Uvas Creek where the project is located. Once finalized, the BA would be provided to NMFS by Caltrans to initiate formal consultation (if any take of steelhead will occur) or informal consultation (if avoidance and minimization measures are adequate to avoid take) with NMFS under Section 7 of FESA. • A memo, following the template developed by the USFWS and SCVHA, documenting the project’s potential impacts to USFWS-regulated, federally listed DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 12 species such as the California tiger salamander and California red-legged frog, and providing information on the project’s compliance with the VHP. Once finalized, this memo would be provided by the City of Gilroy to the SCVHA and the USFWS. Deliverables - These documents will be submitted to the City of Gilroy and Caltrans for review and comment. Valley Habitat Plan Permit Application HTH will prepare all documents required to obtain a VHP permit. All field surveys required by the VHP to inform the permit application will be completed as described above. Using this information, the following application materials will be prepared: • Coverage Screening Form • Reporting Form for Public Projects, including fee calculations and all required attachments Deliverables - These permit application materials will be submitted to the City of Gilroy for review and comment. Task 2e: Initial Site Assessment (ISA) This task will be undertaken by Cornerstone Earth Group, a subconsultant of DJP&A that specializes in Initial Site Assessments that comply with Caltrans standards. Regulatory Agency Database Review - Cornerstone will acquire a report from a firm specializing in the search of readily available environmental agency databases to help establish the presence and type of contamination incidents reported in the site vicinity. The database search report will follow general ASTM E 1527-13 requirements. Cornerstone will review the results of this database search and attempt to identify those facilities that appear likely to have significantly impacted the site based on inferred groundwater flow direction and proximity. Agency File Review - To obtain commonly known and reasonably ascertainable information on on-site hazardous materials releases readily identified as being open cases under the County Local Oversight Program (LOP) and/or identified as being open cases on the Geotraker and/or Envirostor databases, readily available files will be reviewed online. Site History Review - To help develop a history of the previous uses of the site and adjacent area, the study will include a review of the following sources, if they are readily available: DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 13 • Aerial photographs • Topographic maps • City directories • Sanborn fire insurance maps ISA Checklist Form - Cornerstone will complete the standard Caltrans ISA Hazardous Waste Checklist. Site Hydrogeology - Based on readily available public information (California 's Geo Tracker database and USGS topographic maps) and our local experience, we will prepare a brief summary of anticipated site hydrogeology, including approximate depth to ground water and flow direction. This information is useful in evaluating the potential for nearby hazardous material releases, if any, to significantly affect site ground water quality. Site Reconnaissance - If reasonably safe, Cornerstone will make one site visit to observe existing conditions from public right-of-way and note readily observable indicators of past or present activities that may have or could, in their opinion, cause significant site contamination. In addition, Cornerstone will collect readily available information on current site usage. Cornerstone will also conduct a brief drive-by survey of the adjacent properties to note the current land use and, to the extent readily observable, note facilities that appear likely to use, handle or store significant quantities of hazardous materials. This reconnaissance will only be made from public roadways. Deliverable - Cornerstone will prepare an ISA for the site presenting the results of the study, our conclusions, and recommendations. The report will include a vicinity map, site plan, and selected copies of the records obtained and reviewed. The conclusions and recommendations presented in the report will be based on our interpretation of the readily available information reviewed and the conditions observed. Cornerstone will summarize the recognized environmental conditions, if any, derived from the readily observed site conditions and reasonable ascertainable information. Cornerstone will attempt to identify and comment on significant data gaps that affect the ability to identify recognized environmental conditions. Task 2f: Visual Impact Analysis (Minor) This task will be undertaken by Alta Planning + Design, a subconsultant of DJP&A that specializes in visual impact analyses that comply with Caltrans standards. Visual Impact Analysis - Alta will prepare a Visual Impact Analysis (VIA) following the Caltrans Minor VIA template. The VIA will include discussion and analysis of two key views of the proposed project. Alta will develop up to two (2) photo simulations, one for each key view. The photo simulations will be based on the project description and engineering plans. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 14 Deliverables – The VIA will be submitted to the City of Gilroy and Caltrans for review and comment. Task 2g: Equipment Staging Memo DJP&A will prepare a short memo describing the location(s) where equipment and materials will be staged during the construction phase of the project. The location(s) for staging will be provided to DJP&A by the design team or the City. Task 2h: Water Quality Memo DJP&A will prepare a short memo describing the measures to be implemented by the project in compliance with current regulations to prevent or reduce water quality impacts during construction and operation. This information will be provided to DJP&A by the design team or the City. Task 2i: Traffic Memo DJP&A will prepare a short memo describing the traffic handling and staging plan to be implemented during project construction. This information will be provided to DJP&A by the design team or the City. Task 2j: Right-of-Way/Community Impacts Memo DJP&A will prepare a short memo describing the permanent and temporary right-of-way impacts of the proposed project. The project is currently expected to require a construction access easement through existing private open space located at APN 808- 19-020 (Private Open Space). The memo will also describe any impacts to the community, but such impacts are anticipated to be minimal given the nature of the project. Task 2k: Section 4(f) Concurrence Letter DJP&A will assist the City in complying with the Section 4(f) process, a federal requirement that applies to transportation projects that use land from a public park. This scope assumes that the project will require a construction easement from through Christmas Hill Park and temporary closure of the Uvas Creek Trail, which would trigger the 4(f) process. It is assumed that the impact on the Park would be both minor and temporary under Section 4(f) and, therefore, Caltrans will require only a “letter of concurrence” from the City of Gilroy Recreation Division to this effect. DJP&A will undertake the coordination needed for this process and, if requested, will assist the City by drafting a letter on behalf of the Recreation Division. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 15 Task 2l: Caltrans Environmental Compliance Report Prior to the issuance of a CE under NEPA, Caltrans requires that an Environmental Compliance Report (ECR) be prepared. DJP&A will prepare the ECR on behalf of Caltrans and transmit the ECR to Caltrans. TASK 3: INITIAL STUDY/MITIGATED NEGATIVE DECLARATION Task 3a: Initial Study/Mitigated Negative Declaration DJP&A will prepare an Initial Study/Mitigated Negative Declaration (IS/MND) in compliance with the California Environmental Quality Act (CEQA). The IS/MND will utilize the format required by the City at the time it is prepared. DJP&A will respond to comments received by the City upon completion of the circulation of the Initial Study and will attend one meeting before the Gilroy Planning Commission and one meeting before the Gilroy City Council. DJP&A will also prepare the Mitigation Monitoring and Reporting Program. This scope assumes the technical studies and memos prepared to complete the NEPA analysis will be used to complete the CEQA analysis. No additional studies will be prepared for the CEQA analysis, except for the transportation and traffic operations analysis described below. Task 3b: Transportation and Traffic Operations Analysis This task will be undertaken by Hexagon Transportation Consultants, a subconsultant of DJP&A with an office in Gilroy that specializes in preparing transportation analyses. Vehicle Miles Travelled (VMT) Analysis Historically, traffic impact analysis has focused on the identification of traffic impacts and potential roadway improvements based on delays to relieve traffic congestion that may result due to proposed/planned growth. However, with the adoption of SB 743 legislation, public agencies are required (effective July 2020) to base transportation impacts on VMT rather than level of service that typically uses delay as its metric. The change in measurement is intended to better evaluate the effects on the state’s goals for climate change and multi-modal transportation. Therefore, a VMT evaluation is included as part of this proposed scope. The CEQA transportation analysis for the project will consist of both a project-level and General Plan VMT analysis using the City’s TDF model. The transportation analysis will be based on City of Gilroy transportation policies and supplemented with guidelines and recommendations from the Governor’s Office of Planning and Research (OPR) Technical Advisory on Evaluating Transportation Impacts in CEQA, December 2018. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 16 VMT Evaluation - Per OPR’s guidance for the evaluation of transportation improvement projects, the VMT evaluation will consider the effect of the proposed Tenth Street extension and bridge project on all major roadways within a general sphere of influence. Hexagon will use the City’s TDF model developed for the recently completed 2040 General Plan Updated study to develop existing (baseline) VMT and the change in VMT with the proposed project. Per OPR’s recommendations for the evaluation of transportation improvement projects, the determination of significant VMT impact will be based on the extent to which the project causes a significant increase in VMT on the affected roadways. Description of CEQA Impacts and Recommendations – If the results of the VMT evaluation determine that the project would increase VMT, recommendations will be formulated that identify the locations and potential improvements or modifications necessary to mitigate impacts. Mitigation could include improvements to the transit, bicycle, and pedestrian infrastructure. Local Transportation Analysis The traffic operations analysis will consist of a near-term and long-term (General Plan) evaluation of the effects of the roadway network adjustments that are proposed as part of the Tenth Street Extension project on other surrounding roadways and intersections that would be most affected by the project. The supplemental operations analysis will include level of service analysis at a limited number of intersections. However, the determination of project impacts per CEQA requirements will be based solely on VMT metrics. Peak hour operations at existing intersections along the Tenth Street corridor between Uvas Parkway and Princevalle Street as well as the future intersections/roundabout along Tenth Street will be evaluated. Average daily traffic (ADT) will be used to evaluate the effects of the new roadway extension on surrounding roadways. This proposal includes analysis of the following ten existing/future intersections and 14 roadway segments: Study Intersections 1. Miller Avenue and Luchessa Avenue 2. Miller Avenue and Uvas Park Drive 3. Orchard Drive and Tenth Street 4. Valley Forge Drive and Tenth Street 5. Princevalle Street and Tenth Street 6. Tenth Street/Miller Avenue and Santa Teresa Boulevard 7. Uvas Parkway and Tenth Street 8. De Anza Street and Tenth Street 9. Charles Lux Drive and Tenth Street 10. Luchessa Avenue and Tenth Street DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 17 Study Roadway Segments 1. Tenth Street, between Church Street and Monterey Road 2. Tenth Street, between Hanna Street and Glenview Drive 3. Tenth Street, between Valley Forge Drive and Princevalle Street 4. Uvas Parkway, between Tenth Street and Miller Avenue 5. Uvas Park Drive, between Miller Avenue and Wren Avenue 6. Miller Avenue, between Christmas Park and Luchessa Avenue 7. Miller Avenue, between Luchessa Avenue and Santa Teresa Boulevard 8. Miller Avenue, between Yorktown Drive and Uvas Parkway 9. Luchessa Avenue, between Hyde Park Drive and Church Street 10. Luchessa Avenue, between Princevalle Street and Thomas Road 11. Luchessa Avenue, between Thomas Road and Village Place 12. Santa Teresa Boulevard, between Miller Avenue and Thomas Road 13. Thomas Road, between Luchessa Avenue and Oak Brook Way 14. Santa Teresa Boulevard, between Ballybunion Drive and Miller Avenue Scenarios to be Evaluated - The study intersections and roadway segments will be evaluated under the following scenarios: Existing Conditions: Traffic volumes representing Year 2021 traffic conditions. New peak hour intersection traffic counts will be completed at each of the existing study intersections along with 24-hour directional counts along the roadway segments. Year 2040 General Plan No Project Conditions: General Plan forecasted traffic volumes and planned transportation network improvements, as evaluated in the 2040 General Plan Update traffic study, without the Tenth Street extension and bridge project. Year 2040 General Plan Project Conditions: General Plan forecasted traffic volumes and planned transportation network improvements, as evaluated in the 2040 General Plan Update traffic study, including the Tenth Street extension and bridge project. Construction Roadway Closures - The project may require the temporary closure of Uvas Parkway between Miller Avenue and 10th Street during construction. A qualitative evaluation of the effect of the temporary construction roadway closures will be completed. The evaluation will consist of the identification of changes in traffic patterns due to the roadway closures and locations where temporary traffic control/roadway adjustment may be necessary. The effects of construction activities near the High School drop-off/pick-up also will be qualitatively evaluated. Deliverables - Hexagon will prepare a transportation analysis report that documents the project improvement assumptions, analysis methodologies, and findings. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 18 TASK 4: NOTICES DJP&A will prepare the Notice of Intent to adopt a Mitigated Negative Declaration and Notice of Completion (NOC) and OPR summary form for submission of the IS/MND to the State Clearinghouse. Assumptions The following assumptions were made in preparation of this scope of work: • The City of Gilroy will be the CEQA Lead Agency. • The City will undertake mailings, prepare public/newspaper notices. • The City will file the Notice of Intent at the County Clerk and pay the filing fee. • The City will prepare and file the CEQA Notice of Determination at the State Clearinghouse and County Clerk. • The City will pay the Notice of Determination filing fee to the County Clerk. • If indications of cultural resources are found during preparation of the ASR, Caltrans may require subsurface testing and preparation of an Extended Phase I Archaeological Survey Report (XPI). This scope does not include preparation of an XPI. • If project right-of-way takes occur on parcels containing structures, Caltrans may require preparation of an Historic Resources Evaluation Report (HRER) for structures older than 50 years on affected parcels. This scope does not include preparation of an HRER. • This scope includes follow-up communication with up to ten (10) Tribes during the consultation process. • This scope includes up to five (5) virtual tribal consultation meetings. • The project falls within the Permit Area of the VHP and is considered a Covered Activity under the VHP which is defined as “a project conducted by, or is subject to the jurisdiction of, one of the Permittees” (which includes the City of Gilroy) and falls into the broader category of Urban Development. • This scope does not include a detailed wetland delineation report adequate for project permitting or conducting a site visit with the U.S. Army Corps of Engineers (USACE) to obtain verification of jurisdictional boundaries. • This scope does not include development of City-specific CEQA VMT impact thresholds. • This scope does not include obtaining regulatory agency permits (e.g., RWQCB Section 401, USACE Section 404, and CDFW Section 1600 permits). • This scope does not include preparation of habitat restoration plans. • The project will not require permanent park ROW. • This scope does not include a creek diversion analysis. • A Location Hydraulic Study will be prepared by the project engineer. Date of Latest Revision: July 8, 2022 DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “C” MILESTONE SCHEDULE N/A DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 4835-2267-0361v1 LAC\04706083 EXHIBIT “D” PAYMENT SCHEDULE Attached. DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2 10th Street/Uvas Creek Budget David J. Powers & Associates, Inc. Budget for NEPA and CEQA Compliance ODC's 352$ per hour 268$ 191$ per hour 151$ per hour 101$ per hour Sub-& Permit Task Hours Amount Hours Amount Hours Amount Hours Amount Hours Amount Consultant Fees Total NEPA Compliance Natural Environmental Study 1 352$ 1 268$ 6 1,148$ -$ -$ 32,735$ 34,504$ Biological Assessment 1 352$ 1 268$ 4 765$ -$ -$ 16,693$ 18,079$ Equipment Staging Memo 1 352$ 1 268$ 6 1,148$ -$ -$ 1,769$ Air Quality and Greenhouse Gas Analysis 1 352$ 1 268$ 4 765$ -$ -$ 25,215$ 26,601$ Archaeological Survey Report 1 352$ 1 268$ 4 765$ -$ -$ 12,780$ 14,166$ Historic Properties Survey Report 1 352$ 1 268$ 4 765$ -$ -$ 5,281$ 6,667$ Water Quality Memo 1 352$ 1 268$ 4 765$ 16 2,416$ -$ 3,802$ Initial Site Assessment 1 352$ 1 268$ 8 1,530$ -$ -$ 4,860$ 7,011$ Location Hydraulic Study 1 352$ 1 268$ 4 765$ -$ -$ 1,386$ Right-of-Way/Community Memo 1 352$ 1 268$ 4 765$ 10 1,510$ -$ 2,896$ Noise Study Report 1 352$ 1 268$ 4 765$ -$ -$ 24,579$ 25,965$ Visual Impact Assessment (Minor)1 352$ 1 268$ 4 765$ -$ -$ 21,014$ 22,400$ Section 4(f) Concurrence Letter 1 352$ 1 268$ 8 1,530$ -$ -$ 2,151$ Traffic Memo 1 352$ 1 268$ 8 1,530$ 2,151$ Environmental Compliance Report 1 352$ 1 268$ 8 1,530$ -$ -$ 2,151$ Preliminary Environmental Study 1 352$ 1 268$ 10 1,913$ 20 3,020$ -$ 5,554$ NEPA CE 1 352$ 1 268$ 4 765$ -$ -$ 1,386$ CEQA Compliance Project Description 1 352$ 1 268$ 4 765$ 4 604$ -$ 1,990$ 1st Admin Draft IS 1 352$ 4 1,074$ 20 3,826$ 30 4,530$ 20 2,014$ 150$ 11,946$ 2nd Admin Draft IS 1 352$ 1 268$ 10 1,913$ 8 1,208$ 4 403$ 50$ 4,195$ Screencheck -$ 1 268$ 8 1,530$ 6 906$ 4 403$ 1,500$ 4,608$ Response to Comments 1 352$ 1 268$ 10 1,913$ 4 604$ -$ 50$ 3,188$ Native American Consultation -$ 1 268$ 2 383$ -$ -$ 6,168$ 6,819$ Transportation Analysis 1 352$ 5 1,342$ 4 765$ -$ -$ 71,200$ 73,660$ CEQA Notices -$ 1 268$ 4 765$ 12 1,812$ -$ 2,846$ Permits -$ -$ VHP Reporting Form 1 352$ 4$ 1,074$ 4 765$ -$ -$ 11,208$ 13,399$ Project Management -$ -$ Project Management 10 3,524$ 10$ 2,685$ 30 5,739$ 15 3,111$ 15,058$ Meetings -$ -$ PDT Meetings (Assume 10)20 7,047$ 20$ 5,369$ 40 7,652$ -$ -$ 100$ 20,168$ Public/Community Mtgs 15 5,286$ 15$ 4,027$ 15 2,869$ -$ -$ 150$ 12,332$ TOTALS 68 23,961$ 81 21,746$ 245 46,866$ 125 16,611$ 28 2,819$ 234,844$ 2,000$ 348,847$ Optional Tasks Hydroacoustics Analysis -$ -$ -$ -$ 11,222$ 11,222$ TOTALS WITH OPTIONAL TASKS 68 23,961$ 81 21,746$ 245 46,866$ 125 16,611$ 28 2,819$ 246,066$ 2,000$ 360,069$ Date of Latest Revision: March 27, 2023 Senior Principal PM Project Manager Assoc. PM Graphic ArtistPrincipal PM DocuSign Envelope ID: 2DDEBBA8-7268-4FC7-9834-C2C7EFFDC304DocuSign Envelope ID: AFE33B60-4892-43E7-969C-9C3692DD9AD2