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Agreement - David J. Powers & Associates, Inc. - On-Call Environemental Review Services - Signed 2022-06-03
City of Gilroy Agreement/Contract Tracking Today’s Date: May 31, 2022 Your Name: Monica Sendejas Contract Type: Services over $5k - Consultant Phone Number: 408-846-0266 Contract Effective Date: (Date contract goes into effect) 6/3/2022 Contract Expiration Date: 6/3/2025 Contractor / Consultant Name: (if an individual’s name, format as last name, first name) David J. Powers & Associates, Inc. Contract Subject: (no more than 100 characters) On-Call Environmental Review Services (2022) Contract Amount: (Total Amount of contract. If no amount, leave blank) $1,000,000 By submitting this form, I confirm this information is complete: ➢ Date of Contract ➢ Contractor/Consultant name and complete address ➢ Terms of the agreement (start date, completion date or “until project completion”, cap of compensation to be paid) ➢ Scope of Services, Terms of Payment, Milestone Schedule and exhibit(s) attached ➢ Taxpayer ID or Social Security # and Contractors License # if applicable ➢ Contractor/Consultant signer’s name and title ➢ City Administrator or Department Head Name, City Clerk (Attest), City Attorney (Approved as to Form) Routing Steps for Electronic Signature Risk Manager City Attorney Approval As to Form City Administrator or Department Head City Clerk Attestation DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 -1- 4835-2267-0361v1 LAC\04706083 AGREEMENT FOR SERVICES (For contracts over $5,000 - CONSULTANT) This AGREEMENT made this 31 day of May, 2022, 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 6/3/2022 and will continue in effect through 6/3/2025, with up to two, one-year extensions possible through a contract amendment 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: EBC08A16-870D-4354-87AA-70A1CCE41635 -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 $1,000,000.00. B. Invoices CONSULTANT shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment will be made unless CONSULTANT has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit “A”, Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONSULTANT shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT’S costs of doing business. CITY shall not be DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 -3- 4835-2267-0361v1 LAC\04706083 responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers’ Compensation CONSULTANT agrees to provide workers’ compensation insurance for CONSULTANT’S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys’ fees, arising out of any injury, disability, or death of any of CONSULTANT’S employees. C. Indemnification of Liability, Duty to Defend 1. As to professional liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, to the extent arising or resulting directly or indirectly from any willful or negligent acts, errors or omissions of CONSULTANT or CONSULTANT’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. 2. As to other liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, arising or resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 -4- 4835-2267-0361v1 LAC\04706083 including the loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements set forth below. Professional Liability Insurance written on a claims mad e 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 specif ic 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: EBC08A16-870D-4354-87AA-70A1CCE41635 -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: EBC08A16-870D-4354-87AA-70A1CCE41635 -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. DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 -7- 4835-2267-0361v1 LAC\04706083 C. Attorneys’ Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdicti on 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: EBC08A16-870D-4354-87AA-70A1CCE41635 -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: Kristy L. Weis Name: Jimmy Forbis Title: Vice President/Principal Project Manager Title: City Administrator Social Security or Taxpayer Identification Number 77-0219577 DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 -9- 4835-2267-0361v1 LAC\04706083 Approved as to Form ATTEST: City Attorney City Clerk DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 -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 Michael Lisenbee, Carolyn Neer, and Amy Wang, 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, Kraig Tambornini 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”. DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 -2- 4835-2267-0361v1 LAC\04706083 IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. 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 DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 -3- 4835-2267-0361v1 LAC\04706083 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. 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: EBC08A16-870D-4354-87AA-70A1CCE41635 -4- 4835-2267-0361v1 LAC\04706083 H. NOTICES. Notices are to be sent as follows: CITY: Kraig Tambornini, Senior Planner City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: Michael Lisenbee 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: EBC08A16-870D-4354-87AA-70A1CCE41635 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “B” SCOPE OF SERVICES Environmental Reviews In general, the Consultant will be expected to provide comprehensive environmental services in accordance with CEQA. The Consultant’s ability to complete the environmental review in a timely manner is essential. The environmental firm must have staffing resources available (either in-house or assembled team) to complete multiple environmental reviews in an expeditious manner. The services that the on-call Consultant would provide include, but are not limited to the following: 1. Write accurate, clear, concise and legally defensible environmental documents; 2. Work with a consultant staff planner if applicable; 3. Attend Planning Commission and/or City Council meetings and give presentations when necessary; 4. Complete all tasks associated with preparation of environmental documents in compliance with CEQA including to prepare, circulate and file/record environmental documents and notices in accordance with CEQA and within timelines specified by CEQA and the City (shorter timelines may be required for certain projects); 5. Peer review studies or CEQA documents prepared by others; 6. Prepare separate environmental reports as needed; 7. Conduct site visits; 8. Maintain concise and accurate administrative record for the assigned project. A copy of the administrative record shall be maintained at the City and the consultant’s original copy of the project administrative record shall be provided to the City upon request, or at project completion; 9. Be available during regular business hours to answer questions from city staff, outside agencies, and the public; and 10. Provide brief weekly updates to Gilroy Planning staff on the status of the application processing as requested. Prior to assigning a specific project, the City will provide an introductory overview of the project and the scope of services to be provided. All available drawings and other applicable technical and property information will be available to the Consultant. DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “C” MILESTONE SCHEDULE N/A DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 4835-2267-0361v1 LAC\04706083 EXHIBIT “D” PAYMENT SCHEDULE See attached. DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 David J. Powers & Associates, Inc. 20 Quality Environmental Review Makes a Difference David J. Powers & Associates, Inc. 8. Billing Structure David J. Powers & Associates, Inc. Key Team Members Title Hourly Rate Senior Principal $309 Demetri Loukas, Kristy Weis Principal Project Manager $283 Michael Lisenbee Senior Project Manager $221 Amy Wang, Carolyn Neer Project Manager $196 Associate Project Manager $165 Assistant Project Manager $134 Researcher $118 Draftsperson/Graphic Artist $124 Administrative Manager $113 Office Support $98 Notes: Materials, outside services, and subconsultants include a 15 percent administration fee. Mileage will be charged per the current IRS standard mileage rate at the time costs occur. Rates as of January 2022 and subject to change January 1 of each year, not to exceed 3%. Subconsultant Key Team Members Title Hourly Rate Albion Environmental Sarah Nicchitta Co-Principal Investigator (Precolonial Archaeology) $119.48 Douglas Ross Project Manager $109.92 Chelsea Blackmore Co-Principal Investigator (Historical Archaeology) $108.32 GIS/Graphics, Native American Consultation $98.75 Cornerstone Earth Group Ron L. Helm, Dahn T. Tran Senior Principal Engineer or Geologist $275 Principal Engineer or Geologist $250 Senior Project Engineer or Geologist $210 Principal Construction Services $190 Project Engineer or Geologist $190 Senior Staff Engineer or Geologist $170 Senior Supervisory Technician $160 Staff Engineer or Geologist $149 Supervisory Technician $145 Technical Illustrator/CAD Operator $135 Engineering Technician I/II $124 Engineering Technician I $110 Construction Services Administrator $120 Engineering Technician I $110 DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 David J. Powers & Associates, Inc. 21 Quality Environmental Review Makes a Difference Subconsultant Key Team Members Title Hourly Rate Administrative Assistant $90 Hexagon Transportation Consultants, Inc President $290 Jeffrey A. Elia Principal $250 Gicela Del Rio Senior Associate I/II $215-230 Huy Tran Associate I/II $175-195 Planner/Engineer I/II $125-155 Admin/Graphics $110 Senior CAD Tech/Technician $75-95 H.T. Harvey & Associate Steve Rottenborn, Kelly Hardwicke Principal $270-309 Senior Associate Ecologist/ Associate Ecologist $226-243 Senior Ecologist I/II $185-205 Ecologist I/II $141-160 Field Biologist I/II $102-123 Senior GIS Analyst/ GIS Analyst $129-151 Technical Support/Technical Editor $98-123 Clerical Support $81 Live Oak Associates, Inc. Rick Hopkins Principal $230 Davinna Ohlson Director $175 Senior Associate Ecologist/Botanist $155 Senior Project Manager $145 Director of Cartography/GIS Specialist $145 Project Manager $140 Assistant Project Manager $125 Staff Ecologist $110 Illingworth & Rodkin, Inc. Michael S. Thill Principal $230 James A. Reyff Senior Consultant $205 Consultant $180 Staff Consultant $155 Technical/Admin Support $110 Schaaf & Wheeler Consulting Civil Engineers Leif Coponen Principal Project Manager $240 Caitlin Gilmore Senior Project Manager $225 Staff Associate/Assistant Engineer $175-190 DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 5/31/2022 (HD)Heffernan Insurance Brokers 1350 Carlback Avenue Walnut Creek CA 94596 Elizabeth Lee 925-934-8500 925-934-8278 elizabethl@heffins.com Travelers Property Casualty Company of America 25674 DAVIJPO-01 Continental Casualty Company 20443DavidJ.Powers &Associates,Inc. 1871 The Alameda,Suite 200 San Jose CA 95126 The Travelers Indemnity Company of America 25666 Hanover Insurance Company 22292 1069631447 A X 2,000,000 X 1,000,000 5,000 2,000,000 4,000,000 X Y 6809N8316252147 12/3/2021 12/3/2022 4,000,000 C 1,000,000 X BA2R1247412147 12/3/2021 12/3/2022 A X X 2,000,000CUP9N831926214712/3/2021 12/3/2022 2,000,000 D XWZ39816300091/13/2022 1/13/2023 1,000,000 1,000,000 1,000,000 B Professional Liability EEH288347490 3/26/2022 3/26/2023 PER CLAIM AGGREGATE $2,000,000 $2,000,000 Project:DJP&A Job #20-168,Gilroy On-Call RFQ. City of Gilroy,its officers,officials,and employees are included as additional insured on a primary and non-contributory basis on the General Liability policy per the attached endorsement,if required. City of Gilroy its officers,officials and employees 7351 Rosanna Street Gilroy CA 95020 DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 POLICY NUMBER: 6809N8316252147 DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635 DocuSign Envelope ID: EBC08A16-870D-4354-87AA-70A1CCE41635