HomeMy WebLinkAboutAgreement - FCS International, Inc. dba FirstCarbon Solutions - On-Call Environmental Review Services (2022) - Signed 2022-06-27
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AGREEMENT FOR SERVICES
(For contracts over $5,000 - CONSULTANT)
This AGREEMENT made this 20 day of June, 2022, between:
CITY: City of Gilroy, having a principal place of business at
7351 Rosanna Street, Gilroy, California
and CONSULTANT: FCS International, Inc. dba FirstCarbon Solutions, having a principal place
of business at 250 Commerce, Suite 250, Irvine, CA 92602.
ARTICLE 1. TERM OF AGREEMENT
This Agreement will become effective on 6/27/2022 and will continue in effect through
6/27/2025 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.
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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
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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,
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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.
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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
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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.
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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.
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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:
FCS INTERNATIONAL, INC dba
FIRSTCARBON SOLUTIONS
CITY OF GILROY
By: By:
Name: Mary Bean Name: Jimmy Forbis
Title: Director, Professional Services Title: City Administrator
Social Security or Taxpayer
Identification Number 95-3782289
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Approved as to Form ATTEST:
City Attorney City Clerk
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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 Tsui Li, 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”.
IV. PAYMENT OF FEES AND DIRECT EXPENSES
Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement.
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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.
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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.
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H. NOTICES.
Notices are to be sent as follows:
CITY: Kraig Tambornini, Senior Planner
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
CONSULTANT: Mary Bean or Rose Walsh
FirstCarbon Solutions, Inc.
250 Commerce, Suite 250
Irvine, CA 92602
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.
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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: 095ACDB3-E6DE-4E42-9A95-82CF1BFB8579
-1- 4835-2267-0361v1
LAC\04706083
EXHIBIT “C”
MILESTONE SCHEDULE
N/A
DocuSign Envelope ID: 095ACDB3-E6DE-4E42-9A95-82CF1BFB8579
4835-2267-0361v1
LAC\04706083
EXHIBIT “D”
PAYMENT SCHEDULE
See attached.
DocuSign Envelope ID: 095ACDB3-E6DE-4E42-9A95-82CF1BFB8579
Fee Schedule
2022 FEE SCHEDULE—FIRSTCARBON SOLUTIONS
FCS International, Inc., doing business as FirstCarbon Solutions (FCS), is a leading provider of environmental and regulatory
compliance, planning and entitlement, air quality and greenhouse gas emissions, biological and cultural resources
management, noise management, restoration planning and monitoring, and energy, sustainability, and carbon management
services. Compensation is based on the following fee schedule and charges.
FCS Personnel
Hourly Labor Rate
($USD)
President $310–$340
Director/Vice President $260–$310
Legal Counsel $220–$250
Associate Director/Sr. Team Leader $220–$250
Senior Project Manager/Senior Scientist/Senior Regulatory Scientist $190–$220
Project Manager/Scientist/Regulatory Scientist $140–$190
Assistant Project Manager/Assistant Scientist/Assistant Regulatory Scientist $115–$140
Environmental Analyst/Technical Analyst/Regulatory Analyst $95–$115
Senior Graphic Designer/GIS Manager $140–$195
Graphic Designer/GIS/CADD Specialist $110–$150
Publications Coordinator/Technical Editor $100–$140
Word Processor $90–$120
Archaeological/Paleontological Monitor I/II $80–$110
Archaeological/Paleontological Monitor III $110–$140
Biological Monitor I/II $80–$130
Biological Monitor III $130–$160
Reprographics Assistant/Intern $70–$90
Administrative Assistant/Accounting/Clerical $70–$110
Other Labor Rates
Labor rates for expert testimony, litigation support, and depositions/court appearances will be billed at a minimum of two
times the above rates. If additional services are authorized during the performance of a contract, compensation will be based
on the fee schedule in effect at the time the services are authorized.
Direct Expenses
Direct costs and out-of-pocket expenses are billed as follows:
1. Out-of-pocket expenses, including but not limited to, travel, messenger service, reprographics, lodging, meals,
blueprint, reproduction, and photographic services: Cost, as charged to FCS, plus a 10% administrative fee.
2. Subcontractors’ fees: Cost, as charged to FCS, plus a 10% administrative fee.
3. Passenger Cars: $0.585 per mile.
4. Four-wheel drive vehicles: $90.00 per day plus $0.585 per mile.
5. Records checks: Fees vary by facility and project.
6. Museum curation: Fees vary by city and project.
7. Cultural resources storage/curation of fossil and artifact collections: Cost, as charged to FCS, plus a 10%
administrative fee.
8. Per Diem: Fees charged at the USA Federal (GSA) Rate. Lodging surcharge may apply in high rate areas.
9. USFWS/CDFW impacts or mitigation fees: Cost, as charged to FCS, plus a 10% administrative fee.
Terms
Compensation and direct expenses are invoiced monthly and payable upon receipt or as codified in project specific contract.
Rates effective January 1, 2022
DocuSign Envelope ID: 095ACDB3-E6DE-4E42-9A95-82CF1BFB8579
306
*PROFESSIONAL FEE SCHEDULE, 2021-2022
BALANCE HYDROLOGICS, INC.
(Effective July 18, 2021)
Scientific and Engineering Staff† Hourly Rate
Senior Principal $245
Principal II $230
Principal I $220
Senior Professional $195
Project Professional $185
Senior Staff Professional $175
Staff Professional $150
Assistant Professional $140
Junior Professional $130
Support Staff
GIS Senior Analyst $145
GIS/CADD Analyst $130
GIS/CADD Assistant Analyst $115
Senior Project Administrator $130
Senior Report Specialist $105
Report Specialist $98
Hydrologic Technician $95
Mileage will be charged at $0.64 mile (2WD) and $0.67/mile (4WD, if 4WD needed).
Rental vehicles will be charged at cost + 10%.
Nominal use charges are applied for certain field and analytical instruments; fees vary with the nature, duration,
and frequency of use. Rate schedule available on request.
Per diem rates will be charged according to those rates set by the General Services Administration
(www.gsa.gov) based on location, or nearest location to project site.
Project-related expenses will be billed at cost plus 10%, including work by outside consultants and analytical or
testing laboratories.
Certain surcharges and minimums apply to courtroom or hearing testimony; particulars available upon request.
* Reimbursable charges for mileage are subject to change based upon prevailing IRS rates.
† Includes environmental scientists and engineers practicing in hydrology, geology, soil and watershed sciences, and
civil and erosion-control engineering.
DocuSign Envelope ID: 095ACDB3-E6DE-4E42-9A95-82CF1BFB8579
Hexagon 2022 Billing Rates
Professional Classification Rate per Hour
President $300
Principal $260
Senior Associate II $240
Senior Associate I $220
Associate II $200
Associate I $175
Planner/Engineer II $155
Planner/Engineer I $130
Admin/Graphics $110
Senior CAD Tech $95
Technician $75
Direct expenses are billed at actual costs, with the exception of mileage, which is reimbursed at the current
rate per mile set by the IRS.
Billing rates shown are effective January 1, 2022 and subject to change January 1, 2023.
DocuSign Envelope ID: 095ACDB3-E6DE-4E42-9A95-82CF1BFB8579
Ninyo & Moore | City of Gilroy | 09OAK03-01077 | June 9, 2022 CA13
Schedule of Fees
Hourly Charges for Personnel
Professional Staff
Principal Engineer/Geologist/Environmental Scientist/Certified Industrial Hygienist .............................................. $ 195
Senior Engineer/Geologist/Environmental Scientist ................................................................................................ $ 190
Senior Project Engineer/Geologist/Environmental Scientist .................................................................................... $ 185
Project Engineer/Geologist/Environmental Scientist ............................................................................................... $ 175
Senior Staff Engineer/Geologist/Environmental Scientist ....................................................................................... $ 150
Staff Engineer/Geologist/Environmental Scientist ................................................................................................... $ 145
GIS Analyst ............................................................................................................................................................... $ 125
Technical Illustrator/CAD Operator .......................................................................................................................... $ 103
Field Staff
Certified Asbestos/Lead Technician ........................................................................................................................ $ 185
Field Operations Manager ........................................................................................................................................ $ 125
Nondestructive Examination Technician (UT, MT, LP) ........................................................................................... $ 119
Supervisory Technician ............................................................................................................................................ $ 115
Special Inspector (Concrete, Masonry, Structural Steel, Welding, and Fireproofing) ............................................. $ 109
Senior Technician ..................................................................................................................................................... $ 108
Technician ................................................................................................................................................................ $ 103
Administrative Staff
Information Specialist ............................................................................................................................................... $ 85
Geotechnical/Environmental/Laboratory Assistant .................................................................................................. $ 80
Data Processor ......................................................................................................................................................... $ 75
Other Charges
Concrete Coring Equipment (includes technician) .............................................................................................. $ 190/hr
Anchor Load Test Equipment (includes technician) ............................................................................................ $ 190/hr
GPR Equipment ................................................................................................................................................... $ 180/hr
Inclinometer .......................................................................................................................................................... $ 100/hr
Hand Auger Equipment ....................................................................................................................................... $ 80/hr
Rebar Locator (Pachometer) ............................................................................................................................... $ 25/hr
Vapor Emission Kit ............................................................................................................................................... $ 65/kit
Nuclear Density Gauge ........................................................................................................................................ $ 12/hr
X-Ray Fluorescence ............................................................................................................................................ $ 70/hr
PID/FID................................................................................................................................................................. $ 25/hr
Air Sampling Pump .............................................................................................................................................. $ 10/hr
Field Vehicle ......................................................................................................................................................... $ 15/hr
Expert Witness Testimony ................................................................................................................................... $ 450/hr
Direct Expenses ..................................................................................................................................... Cost plus 15 %
Special equipment charges will be provided upon request.
Notes
For field and laboratory technicians and special inspectors, overtime rates at 1.5 times the regular rates will be charged
for work performed in excess of 8 hours in one day Monday through Friday and all day on Saturday. Rates at twice the
regular rates will be charged for all work in excess of 12 hours in one day, all day Sunday and on holidays.
Field technician and special inspection hours are charged at a 4-hour minimum, and 8-hour minimum for hours
exceeding 4 hours.
Invoices are payable upon receipt. A service charge of 1.5 percent per month may be charged on accounts not paid
within 30 days.
Our rates will be adjusted in conjunction with the increase in the Prevailing Wage Determination during the life of the
project, as applicable.
The terms and conditions are included in Ninyo & Moore’s Work Authorization and Agreement form.
DocuSign Envelope ID: 095ACDB3-E6DE-4E42-9A95-82CF1BFB8579
Ninyo & Moore | 2021 Laboratory Testing
Schedule of Fees for Laboratory Testing
SOILS CONCRETE
Atterberg Limits, D 4318, CT 204 ............................................................. $ 170 Compression Tests, 6x12 Cylinder, C 39 ................................................... $ 35
California Bearing Ratio (CBR), D 1883 ................................................... $ 550 Concrete Mix Design Review, Job Spec ..................................................... $ 300 Chloride and Sulfate Content, CT 417 & CT 422 .................................... $ 175 Concrete Mix Design, per Trial Batch, 6 cylinder, ACI ............................... $ 850
Consolidation, D 2435, CT 219 ................................................................. $ 300 Concrete Cores, Compression (excludes sampling), C 42 ........................ $ 120
Consolidation, Hydro-Collapse only, D 2435 ........................................... $ 150 Drying Shrinkage, C 157 .............................................................................. $ 400
Consolidation – Time Rate, D 2435, CT 219 ........................................... $ 200 Flexural Test, C 78 ....................................................................................... $ 85 Direct Shear – Remolded, D 3080 ............................................................ $ 350 Flexural Test, C 293 ..................................................................................... $ 85
Direct Shear – Undisturbed, D 3080 ......................................................... $ 300 Flexural Test, CT 523 ................................................................................... $ 95
Durability Index, CT 229 ............................................................................ $ 175 Gunite/Shotcrete, Panels, 3 cut cores per panel and test, ACI ................ $ 275
Expansion Index, D 4829, IBC 18-3 ......................................................... $ 190 Lightweight Concrete Fill, Compression, C 495 ......................................... $ 80
Expansion Potential (Method A), D 4546 ................................................. $ 170 Petrographic Analysis, C 856 ....................................................................... $ 2,000
Geofabric Tensile and Elongation Test, D 4632 ...................................... $ 200 Restrained Expansion of Shrinkage Compensation ................................... $ 450
Hydraulic Conductivity, D 5084 ................................................................. $ 350 Splitting Tensile Strength, C 496 ................................................................. $ 100
Hydrometer Analysis, D 6913, CT 203 ..................................................... $ 220 3x6 Grout, (CLSM), C 39.............................................................................. $ 55 Moisture, Ash, & Organic Matter of Peat/Organic Soils .......................... $ 120 2x2x2 Non-Shrink Grout, C 109.................................................................. $ 55
Moisture Only, D 2216, CT 226 ................................................................ $ 35
Moisture and Density, D 2937 ................................................................... $ 45 ASPHALT
Permeability, CH, D 2434, CT 220 ........................................................... $ 300 Air Voids, T 269 ............................................................................................ $ 85
pH and Resistivity, CT 643 ........................................................................ $ 175 Asphalt Mix Design, Caltrans (incl. Aggregate Quality) ............................. $ 4,500 Proctor Density D1557, D 698, CT 216, AASHTO T-180 ....................... $ 220 Asphalt Mix Design Review, Job Spec ........................................................ $ 180
Proctor Density with Rock Correction D 1557.......................................... $ 340 Dust Proportioning, CT LP-4 ........................................................................ $ 85
R-value, D 2844, CT 301 ........................................................................... $ 375 Extraction, % Asphalt, including Gradation, D 2172, CT 382 .................... $ 250
Sand Equivalent, D 2419, CT 217 ............................................................ $ 125 Extraction, % Asphalt without Gradation, D 2172, CT 382 ........................ $ 150 Sieve Analysis, D 6913, CT 202 ............................................................... $ 145 Film Stripping, CT 302 .................................................................................. $ 120
Sieve Analysis, 200 Wash, D 1140, CT 202 ............................................ $ 100 Hveem Stability and Unit Weight D 1560, T 246, CT 366 .......................... $ 225
Specific Gravity, D 854 .............................................................................. $ 125 Marshall Stability, Flow and Unit Weight, T 245 ......................................... $ 240
Thermal Resistivity (ASTM 5334, IEEE 442) ........................................... $ 925 Maximum Theoretical Unit Weight, D 2041, CT 309 .................................. $ 150 Triaxial Shear, C.D, D 4767, T 297 ........................................................... $ 550 Moisture Content, CT 370 ............................................................................ $ 95
Triaxial Shear, C.U., w/pore pressure, D 4767, T 2297 per pt ................ $ 450 Moisture Susceptibility and Tensile Stress Ratio, T 238, CT 371 ............. $ 1,000
Triaxial Shear, C.U., w/o pore pressure, D 4767, T 2297 per pt ........................ $ 350 Slurry Wet Track Abrasion, D 3910 ............................................................. $ 150
Triaxial Shear, U.U., D 2850 ..................................................................... $ 250 Superpave, Asphalt Mix Verification (incl. Aggregate Quality) .................. $ 4,900 Unconfined Compression, D 2166, T 208 ................................................ $ 180 Superpave, Gyratory Unit Wt., T 312 .......................................................... $ 100
Superpave, Hamburg Wheel, 20,000 passes, T 324 ................................. $ 1,000 MASONRY Unit Weight sample or core, D 2726, CT 308 ............................................. $ 100
Brick Absorption, 24-hour submersion, 5-hr boiling, 7-day, C 67 ........... $ 70 Voids in Mineral Aggregate, (VMA) CT LP-2 .............................................. $ 90
Brick Compression Test, C 67 .................................................................. $ 55 Voids filled with Asphalt, (VFA) CT LP-3 ..................................................... $ 90 Brick Efflorescence, C 67 .......................................................................... $ 55 Wax Density, D 1188 ................................................................................... $ 140
Brick Modulus of Rupture, C 67 ................................................................ $ 50
Brick Moisture as received, C 67 .............................................................. $ 45 AGGREGATES
Brick Saturation Coefficient, C 67 ............................................................. $ 60 Clay Lumps and Friable Particles, C 142 .................................................... $ 180
Concrete Block Compression Test, 8x8x16, C 140 ................................. $ 70 Cleanness Value, CT 227 ............................................................................ $ 180
Concrete Block Conformance Package, C 90 ......................................... $ 500 Crushed Particles, CT 205 ........................................................................... $ 175 Concrete Block Linear Shrinkage, C 426 ................................................. $ 200 Durability, Coarse or Fine, CT 229 .............................................................. $ 205
Concrete Block Unit Weight and Absorption, C 140 ................................ $ 70 Fine Aggregate Angularity, ASTM C 1252, T 304, CT 234 ....................... $ 180
Cores, Compression or Shear Bond, CA Code ....................................... $ 70 Flat and Elongated Particle, D 4791 ............................................................ $ 220
Masonry Grout, 3x3x6 prism compression, C 39 .................................... $ 45 Lightweight Particles, C 123 ......................................................................... $ 180 Masonry Mortar, 2x4 cylinder compression, C 109 ................................. $ 35 Los Angeles Abrasion, C 131 or C 535 ....................................................... $ 200
Masonry Prism, half size, compression, C 1019...................................... $ 120 Material Finer than No. 200 Sieve by Washing, C 117 .............................. $ 90
Masonry Prism, Full size, compression, C 1019...................................... $ 200 Organic Impurities, C 40 ............................................................................... $ 90
Potential Alkali Reactivity, Mortar Bar Method, Coarse, C 1260 ............... $ 1,250 REINFORCING AND STRUCTURAL STEEL Potential Alkali Reactivity, Mortar Bar Method, Fine, C 1260 .................... $ 950
Chemical Analysis, A 36, A 615 ................................................................ $ 135 Potential Reactivity of Aggregate (Chemical Method), C 289 ................... $ 475
Fireproofing Density Test, UBC 7-6 .......................................................... $ 90 Sand Equivalent, T 176, CT 217.................................................................. $ 125
Hardness Test, Rockwell, A 370 ............................................................... $ 80 Sieve Analysis, Coarse Aggregate, T 27, C 136 ........................................ $ 120
High Strength Bolt, Nut & Washer Conformance, Sieve Analysis, Fine Aggregate (including wash), T 27, C 136 ................. $ 145 per assembly, A 325 ............................................................................. $ 150 Sodium Sulfate Soundness, C 88 ................................................................ $ 450
Mechanically Spliced Reinforcing Tensile Test, ACI ............................... $ 175 Specific Gravity and Absorption, Coarse, C 127, CT 206 .......................... $ 115
Pre-Stress Strand (7 wire), A 416 ............................................................. $ 170 Specific Gravity and Absorption, Fine, C 128, CT 207............................... $ 175
Reinforcing Tensile or Bend up to No. 11, A 615 & A 706 ..................... $ 75 Structural Steel Tensile Test: Up to 200,000 lbs., A 370......................... $ 90 ROOFING
Welded Reinforcing Tensile Test: Up to No. 11 bars, ACI ...................... $ 80 Roofing Tile Absorption, (set of 5), C 67 ..................................................... $ 250
Roofing Tile Strength Test, (set of 5), C 67................................................. $ 250
Special preparation of standard test specimens will be charged at the technician’s hourly rate. Ninyo & Moore is accredited to perform the AASHTO equivalent of many ASTM test procedures.
DocuSign Envelope ID: 095ACDB3-E6DE-4E42-9A95-82CF1BFB8579
City of Gilroy
Agreement/Contract Tracking
Today’s Date:
June 20, 2022 Your Name: Monica Sendejas
Contract
Type:
Services over $5k - Consultant Phone Number: 408-846-0266
Contract Effective Date:
(Date contract goes into effect)
6/27/2022
Contract Expiration Date: 6/27/2025
Contractor / Consultant Name:
(if an individual’s name, format as
last name, first name)
FCS International, Inc. dba FirstCarbon Solutions
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: 095ACDB3-E6DE-4E42-9A95-82CF1BFB8579