HomeMy WebLinkAboutAgreement - Circlepoint, Inc. - EIR for Gilroy Data Center - Signed 2022-06-27City of Gilroy
Agreement/Contract Tracking
Today’s Date:
June 27, 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: 12/30/2023
Contractor / Consultant Name:
(if an individual’s name, format as
last name, first name)
Circlepoint, Inc.
Contract Subject:
(no more than 100 characters)
Prepare an Environmental Impact Report (EIR) for the Gilroy Data Center
Project (AWS)
Contract Amount:
(Total Amount of contract. If no
amount, leave blank)
$175,000.00
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
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AGREEMENT FOR SERVICES
(For contracts over $5,000 - CONSULTANT)
This AGREEMENT made this 27th day of June, 2022, between:
CITY: City of Gilroy, having a principal place of business at
7351 Rosanna Street, Gilroy, California
and CONSULTANT: Circlepoint, Inc., having a principal place of business at 200 Webster
Street, Suite 200, Oakland, CA 94607.
ARTICLE 1. TERM OF AGREEMENT
This Agreement will become effective on June 27, 2022 and will continue in effect through
December 30, 2023 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 $175,000 including a base
budget of $158,988 and a contingency budget of $16,012.
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 made
basis (including without limitation the initial policy obtained and all subsequent policies
purchased as renewals or replacements) must show the retroactive date, and the retroactive date
must be before the earlier of the effective date of the contract or the beginning of the contract
work. Claims made Professional Liability Insurance must be maintained, and written evidence
of insurance must be provided, for at least five (5) years after the completion of the contract
work. If claims made coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the earlier of the effective date of the
contract or the beginning of the contract work, CONSULTANT must purchase so called
“extended reporting” or “tail” coverage for a minimum of five (5) years after completion of
work, which must also show a retroactive date that is before the earlier of the effective date of
the contract or the beginning of the contract work. As a condition precedent to CITY’S
obligations under this Agreement, CONSULTANT shall furnish written evidence of such
coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive
Liability insurance policy referred to in (a) immediately above via a specific endorsement) and
requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in
policy terms.
E. Assignment
Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or
obligations of CONSULTANT under this Agreement may be assigned or subcontracted by
CONSULTANT without the prior written consent of CITY, which CITY may withhold in its
sole and absolute discretion.
F. State and Federal Taxes
As CONSULTANT is not CITY’S employee, CONSULTANT shall be responsible for paying
all required state and federal taxes. Without limiting the foregoing, CONSULTANT
acknowledges and agrees that:
• CITY will not withhold FICA (Social Security) from CONSULTANT’S
payments;
• CITY will not make state or federal unemployment insurance contributions on
CONSULTANT’S behalf;
• CITY will not withhold state or federal income tax from payment to
CONSULTANT;
• CITY will not make disability insurance contributions on behalf of
CONSULTANT;
• CITY will not obtain workers’ compensation insurance on behalf of
CONSULTANT.
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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 su ccessor
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 jurisdiction or
authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the
provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or
subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for
goods or services to refrain from discriminatory employment or subcontracting practices on the
basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant
for employment, or any potential subcontractor.
F. Conflict of Interest
CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any
public agency interested in this Agreement has any pecuniary interest in the business of
CONSULTANT and that no person associated with CONSULTANT has any interest that would
constitute a conflict of interest in any manner or degree as to the execution or performance of
this Agreement.
G. Entire Agreement
This Agreement supersedes any and all prior agreements, whether oral or written, between the
parties hereto with respect to the rendering of services by CONSULTANT for CITY and
contains all the covenants and agreements between the parties with respect to the renderin g 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:
CIRCLEPOINT, INC. CITY OF GILROY
By: By:
Name: Audrey Zagazeta Name: Jimmy Forbis
Title: President and CEO Title: City Administrator
Social Security or Taxpayer
Identification Number 94-3171809
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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 Andrew Metzger, 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, Cindy
McCormick 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 ma de 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: Cindy McCormick
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
CONSULTANT: Andrew Metzger
Circlepoint, Inc.
42 South First Street, Suite D
San Jose, CA 95113
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
Attached
DocuSign Envelope ID: 14F9F2E1-0C78-4311-A1E3-40287DCA9EA0
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Exhibit B—Scope of Work
EXHIBIT B—SCOPE OF WORK
Thank you for this exciting opportunity to work with the City of Gilroy (City). We are pleased to provide this
proposal, which outlines Circlepoint’s approach to preparing an Environmental Impact Report (EIR) for the Gilroy
Data Center (project) proposed by Amazon Data Services (the Applicant).
PROJECT UNDERSTANDING
Circlepoint understands that the project will consist of the following components to be constructed in two
phases:
• Two data center buildings and one security building totaling approximately 438,500 square feet;
• Backup generating facilities to provide electricity to critical data center operations in the event of a loss of
utility power;
• Two battery energy storage systems;
• A new substation/switchyard and a double circuit transmission upgrade;
• A new recycled water pipeline;
• Ancillary utility infrastructure for connection to existing stormwater and potable water pipelines;
• Security fencing;
• General Site Grading, Stormwater and Landscaping.
Phase I will be a traditional data center set up, requiring the use of diesel-powered backup generators. Circlepoint
understands that the Applicant is committed to Tier-4 compliant backup generators, as required by the Bay Area
Air Quality Management District (BAAQMD). Phase II will utilize an emerging technology to provide backup energy
in the event of a power failure. Given that Phase I will have a maximum electrical demand of 49 MW and Phase II
would leverage an alternative energy supply instead of diesel generators, the California Energy Commission (CEC)
would not have jurisdiction over the project. Therefore, the project is not required to seek a Small Power Plant
Exemption (SPPE) from CEC’s jurisdiction, and the project can follow the normal CEQA clearance process at the
local level.
The project will require water for cooling when outside air temperatures exceed 83 degrees F. The data center
will be designed to use recycled water provided by the City of Gilroy, once available, and a potable water
connection will serve as a back-up source to the recycled water supply. Given the level of water demand required
for the project, both potable and recycled, it is critical that the availability of water resources to meet project
demand is adequately analyzed.
The project site’s former use for agricultural production indicates that vehicle miles traveled (VMT) generated
from construction and operations of the project would be considered net new to the project site. The project is
expected to include 25 employees to operate the data center and 37 employees to assemble the data equipment.
Circlepoint will use the peer-reviewed VMT analysis to carefully consider impacts.
APPROACH
process and environmental document as clear and straightforward as possible, so the general public and
agencies understand the process, analysis, and issues being addressed.
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Exhibit B—Scope of Work
Based on the Request for Proposal (RFP) Letter provided by the City, Circlepoint understands that the City
envisions preparing an Environmental Impact Report (EIR) that conservatively assesses the potential impacts of
the project. While other less robust environmental document options (such as an Initial Study/Mitigated Negative
Declaration) may also be feasible, Circlepoint agrees with the City’s preferred approach because an EIR will allow
maximum public and agency involvement and be more legally defensible in the event of a challenge. Circlepoint
anticipates that the project will face the greatest scrutiny surrounding impacts associated with water supply and
operation, and noise introduced to the project site. Strong project management will be required to execute the
preparation of a timely and meticulous document that will withstand legal and public scrutiny with regards to
these topics. This requires experience and the right skills which Circlepoint possesses based on our extensive
history working on data centers in Santa Clara, San José, and Los Angeles.
opportunities for environmental streamlining. The EIR could address topics such as Mineral Resources,
the CEQA Guidelines Section 15128.
Circlepoint understands the Applicant has submitted a detailed project description that includes a “mitigation
incorporated into the project design” approach. This approach is common within the CEC’s SPPE process, but
presents legal concerns from a local agency CEQA perspective (such as Lotus v. Department of Transportation
(223 Cal. App. 4th 645)). Circlepoint will work closely with the City to review the applicable standard conditions of
approval along with existing local, regional, state, and federal policies and best practices that could support the
use of some Applicant-provided measures as “project features.” Circlepoint will apply our robust understanding
impacts and discloses necessary mitigation.
QUALITY ASSURANCE/QUALITY CONTROL PROCESS
Circlepoint’s quality assurance/quality control (QA/QC) process ensures the continuing integrity and quality of all
services and deliverables. Our QA/QC process includes senior review responsibilities for both the Project
Manager and the Principal-in-Charge. The Project Manager directs and reviews project team work on deliverables
products before a work product is delivered to a client or printer. The following table summarizes the
management structure that Circlepoint uses to ensure the quality of every document we produce.
ROLE RESPONSIBILITIES
Principal-in-Charge • Overall quality control and quality assurance of all work products
Project Manager • Primary client contact
• Oversees document preparation and coordination with technical subconsultants
• Provides intermediate QA review and technical editing prior to PIC review
Senior Associate • Secondary client contact, often acting in a Deputy Project Manager capacity
• Coordinates information requests, delivery schedules, and day-to-day
communication with technical consultant
• Lead reviewer and proofreader for most documents
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Exhibit B—Scope of Work
ROLE RESPONSIBILITIES
Associate / Assistant • Authorship of individual document sections
• Research for document sections not covered by a technical report
• Technical editing / formatting / production of all work products
Coordinator / Graphics • Preparation of graphics and maps
WORK PLAN
TASK 1: KICKOFF AND MEETINGS
anticipates attendance at the following meetings:
•
• Twenty four (24) Bi-weekly Check In Meetings with City (Based on anticipated project schedule)
•
TASK 2: SCOPING MEETING AND NOTICE OF PREPARATION
Circlepoint will prepare a Notice of Preparation (NOP) to inform the public and applicable stakeholders that
environmental documentation is being prepared for the project. Consistent with Section 15082 of the CEQA
Guidelines, the NOP materials shall include a description of the project, the location of the project, and probable
impacts are anticipated, such as mineral and forestry resources. Following distribution of the NOP, Circlepoint will
work closely with the City to facilitate a Public Scoping Meeting and provide recommendations in meeting
response to the Public Scoping Meeting and the NOP and strategize with the City on incorporating these “known
issues” into the EIR.
TASK 3: PROJECT DESCRIPTION
Circlepoint will prepare and submit a project description for City review and approval. Circlepoint will build upon
the project description prepared by the Applicant and ensure it meets the requirements of CEQA Guidelines
Section 15124. Circlepoint anticipates that the existing project description contains the majority of information
needed for CEQA analysis. Circlepoint will revise the project description in response to one round of comments
from the City. Circlepoint will utilize the following background materials (to be provided by the City/Applicant) to
complete the project description:
• Preliminary geotechnical feasibility report
•
systems
• Commissioning test details (duration, number of generators) and maintenance testing plan
•
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Exhibit B—Scope of Work
• Utility “will-serve” letters for electrical and water utilities and/or supply assessments if required by the City or
utility provider
• Total anticipated power consumption (average, daily or annual)
• Total daily water demand ; can be prorated from annual demand
• Sanitary sewer capacity study, if required by City
• Arborist report, if required by City
• Construction assumptions, including duration, phasing, construction start and end months, and review of
construction equipment list
Key Deliverable: Project Description
TASK 4: PROJECT MANAGEMENT
Circlepoint will provide ongoing project management throughout the environmental review process including
maintain a project schedule and provide regular updates to the City. Circlepoint will also prepare monthly
progress reports to accompany monthly invoices containing the following information: the beginning and ending
dates of the billing period; budget summary including budget spent to date and budget remaining; and a Task
Summary for each work task, containing the name of the person doing the work, the hours spent by each person,
and a brief description of the work.
TASK 5: TECHNICAL STUDIES
Based on the background materials provided with the City’s RFP, Circlepoint understands that the Applicant has
provided several background documents for consideration including aesthetics, biological resources, cultural
resources, geology and soils, land use, mineral resources, public services, recreation, hazardous materials,
prepared by the Applicant and/or City:
• Air Quality Impact Assessment
• Natural Resources Memorandum
• Archaeological Literature Search
• Geotechnical Desktop Review
• Geotechnical Considerations Report
• Phase I Environmental Site Assessment
• Phase II Environmental Site Assessment
• Environmental Noise & Vibration Assessment
• Environmental Noise & Vibration Assessment Addendum
• Transportation Attachments, VMT Analysis, including Peer Review of VMT Assessment
• California Energy Commission Tribal Outreach Letters
• City of Gilroy Assessment of Water Supply
• Arborist Report
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Exhibit B—Scope of Work
Circlepoint will conduct a gap analysis to ensure each of these technical studies provides the information
necessary to support and complete the EIR per CEQA guidelines. If additional technical analysis is required,
Circlepoint will coordinate with the City to strategize on the best course of action. Additional studies would
require an amendment to this scope and fee. We assume all reports listed above will be provided to Circlepoint in
a format acceptable for use in supporting a CEQA document and can be publicly circulated.
TASK 6: DRAFT EIR
Circlepoint will prepare a Draft EIR consistent with CEQA Guidelines Article 9. The Draft EIR will meet all City
standards for content and formatting.
Task 6.1: Administrative Draft EIR
The background materials provided with the City’s RFP Letter included CEQA-related documents which assess and
analyze project impacts for a number of resources. Circlepoint will rely upon the analysis already prepared to the
prepare the setting, impacts, and mitigation discussions for each environmental topic area set forth in Appendix
G of the CEQA Guidelines. Circlepoint will prepare a summary of existing conditions, pertinent regulations, and a
description of the regional setting, placing special emphasis on any rare or unique environmental resources in
the project area. Circlepoint will review and reference relevant policies and regulations from the City’s General
Plan and Zoning Code, and other documents required for the analysis as applicable. The EIR will also include an
analysis of alternatives to the project, an assessment of cumulative impacts associated with the project, and a
description of comments received during the scoping period. Circlepoint assumes that up to three alternatives
will be evaluated in the EIR, including (for example) a reduced development alternative, a reduced backup electric
generation alternative, and/or a backup electric generation technology alternative. For the cumulative impacts
analysis, Circlepoint will use the City’s General Plan as a guide for reasonably foreseeable projects in the
surrounding area.
Circlepoint will prepare a draft mitigation monitoring and reporting program (MMRP) to be submitted with the
Administrative Draft EIR for City review. The draft MMRP will develop and present feasible mitigation for
monitoring each mitigation measure, and identify monitoring triggers and reporting frequency for each measure.
The Administrative Draft and MMRP will be provided in electronic formats to the City.
Key Deliverables: Administrative Draft EIR, draft MMRP
Task 6.2: Screencheck Draft EIR
Circlepoint will then provide clean, compiled PDF and MS Word versions of the screencheck draft EIR to verify that
Key Deliverables: Second Administrative Draft EIR, Screencheck Draft EIR.
Task 6.3: Public Draft EIR
comments and submit web-ready versions of the EIR and all associated appendices. Hardcopies of the EIR can
be provided on a time and materials basis, if requested by the City. Circlepoint will also prepare the combined
Notice of Availability/Release and a Notice of Completion in accordance with Section 15087 of the CEQA
Guidelines, and provide advice as needed to the City regarding distribution of the Draft EIR pursuant to CEQA
and City review procedures. Consistent with Section 15087, notice availability of the Draft EIR will be published
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Exhibit B—Scope of Work
project is to be located, and mailed to the owners and occupants of property contiguous to the parcel or
parcels on which the project is located.
The Draft EIR will be circulated for a minimum of 45 days. While public hearings are not required as an element of
the CEQA process, they are encouraged to facilitate the public commenting process and address known issues of
the project. Circlepoint recommends that the City hold a public hearing during the circulation period given the
anticipated public controversy surrounding the project. This scope includes a public hearing as an optional task.
OPTIONAL TASK: Public Hearing
Key Deliverables: Draft EIR, NOA, NOC
TASK 7: FINAL EIR
Task 7.1: Response to Public Comments
Circlepoint will prepare written responses to comments on the Draft EIR following the public review period.
Circlepoint assumes the City will provide copies of all written comments. Should the City decide to advance with
the public hearing, which is included in this scope as an optional task, Circlepoint will assist the City in recording
written and verbal comments at the hearing. Circlepoint will compile all comments with alpha-numeric codings
close of the comment period to discuss the best approach, which may include the use of master responses to
facilitate the response to similar or repeated comments. Comment responses will be incorporated to the Final EIR
for the City’s review.
Circlepoint hours listed in the proposed budget for responses to comments are an allowance. If an unusually
large volume of comments are received (over 15 distinct comment letters), Circlepoint will confer with the City to
determine an appropriate path forward. The scope and budget also assumes responses do not require
substantial additional research, analysis, or meetings with commenters.
Task 7.2: Final EIR
Circlepoint will prepare a Final EIR which includes responses to all public comments received during the
circulation period. Consistent with Section 15132 of the CEQA Guidelines, the Final EIR will comprise the following
elements:
• Project Description
• A Summary of the Environmental Process
•
• Responses to Comments, including a list of persons, organizations, and public agencies commenting on the
draft EIR; the comments received, and the City’s responses to each comment
• An Erratum to address any necessary changes to the Draft EIR that may result from public comments
• Appendices (as needed)
Based on up to two (2) sets of consolidated comments from the City, Circlepoint will revise the responses to
Key Deliverables: Response to Public Comments, Final EIR.
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Exhibit B—Scope of Work
ASSUMPTIONS
The following assumptions apply to this project:
Circlepoint anticipates responding to three (3) rounds of revisions from the City on the EIR including two (2)
administrative drafts and one (1) screencheck draft prior to publication.
Comments on draft documents will be provided to Circlepoint electronically using Microsoft Word’s Track
All submittals will be conducted electronically (PDF and Microsoft Word versions). Electronic versions will
be provided in both word and pdf format. Additional hard copies and electronic versions can be provided
upon request by the City.
Circlepoint assumes that all edits and revisions between the Draft and Final EIR would be minor in nature,
the Draft EIR may need to be recirculated pursuant to CEQA Guidelines Section 15088.5.
distribution for the Public Scoping Meeting. Should the City request additional support in this task, this can
be addressed in coordination with the City and the preparation of a scope addendum.
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EXHIBIT “C”
MILESTONE SCHEDULE
Attached
DocuSign Envelope ID: 14F9F2E1-0C78-4311-A1E3-40287DCA9EA0
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Exhibit C—Milestone Schedule
EXHIBIT C—MILESTONE SCHEDULE
The Circlepoint team will initiate work on this project upon contract execution. Background research, site visits,
and reporting will commence immediately. The completion of the EIR process typically takes 10 to 12 months,
depending on the City’s review time.
MILESTONE ESTIMATED COMPLETION DATE
Mid-to-Late June, 2022
Receipt of Requested Data Early July, 2022
Submittal of Draft Project Description Late July, 2022
City Comments on Draft Project Description Mid-to-Late August, 2022
Finalization of Project Description August/September, 2022
Technical Reports Gap Analysis September, 2022
NOP Preparation September/October, 2022
City Reviews NOP materials Early-To-Mid October, 2022
Scoping Meeting Early November, 2022
Compilation of NOP Comments to be included in EIR Late November, 2022
Submittal of Administrative Draft EIR December, 2022
City Provides Comments on Administrative Draft EIR January 2023
Submittal of Second Administrative Draft EIR January/February, 2023
City Provides Comments on Second Administrative Draft EIR
(3 week review)
February, 2023
Submittal of Screencheck Draft EIR March, 2023
Public Circulation of Draft EIR March, 2023
Public Meetings (Optional) April, 2023
Meeting with City to discuss Public Comments received May, 2023
Submittal of First Draft of Final EIR May, 2023
City Review Provides Comments on First Draft of Final EIR
(3 week review)
June, 2023
Submittal of Final EIR June/July, 2023
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LAC\04706083
EXHIBIT “D”
PAYMENT SCHEDULE
Attached
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Exhibit D—Payment Schedule
EXHIBIT D—PAYMENT SCHEDULE
Circlepoint would complete the tasks described above for a not-to-exceed fee of $158,988.
M5528 Gilroy AWS Data Center
Tasks Principal
Comms
Sr. PM PM Sr. Assoc Associate
Assistant /
Coordinator
Sr. Web/
Graphics
Rates 252$ 197$ 173$ 138$ 118$ 103$ 144$
Task 1 Kickoff, Project Description, and other Meetings
1.1 Kick Off Meeting 1 - 4 3 - - 8 1,244.00$
1.2 Bi-Weekly Check In Meetings - - 24 24 - - - 48 7,464.00$
1.3 Planning Comissions/City Council Meetings 4 - 27 6 - - 37 6,570.00$
Subtotal Task 1 Kickoff, Project Description, a 5 - 55 33 - - - 93 15,278.00$
Task 2 Public Scoping and NOP
2.1 Public Scoping Meeting 1 4 2 2 8 2 19 2,608.00$
2.2 NOP materials 1 6 7 8 - 20 2,912.00$
Subtotal Task 2 Public Scoping and NOP 1 - 6 7 8 - - 39 5,520.00$
Task 3 Project Description
3.1 Project Description 2 - 10 8 8 6 - 34 4,878.00$
Subtotal Task 3 Project Description 2 - 10 8 8 6 - 34 4,878.00$
Task 4 Project Management
4.1 Project Management and Coordination 8 18 72 18 - - - 116 20,540.00$
Subtotal Task 4 Project Management 8 18 72 18 - - - 116 20,540.00$
Task 5 Technical Studies
5.1 Gap Analysis 4 - 20 18 15 - 57 8,580.00$
Subtotal Task 5 Technical Studies 4 - 20 18 15 - - 57 8,580.00$
Task 6 Admin Draft EIR
6.1 Admin Draft EIR 10 - 40 85 92 100 - 327 42,270.00$
6.2 Screencheck Draft EIR 4 - 20 30 40 50 - 144 18,500.00$
6.3 Public Draft EIR 4 - 20 28 38 38 - 126 16,440.00$
Subtotal Task 6 Admin Draft EIR 18 - 80 142 170 188 - 597 77,210.00$
Task 7 Final EIR
7.1 Response to Public Comments and Final EIR 2 - 20 20 22 22 - 85 11,386.00$
7.2 Final EIR 4 10 12 12 14 52 7,126.00$
Subtotal Task 7 Final EIR 2 - 20 20 22 22 - 137 18,512.00$
Labor Subtotal 37 18 257 240 215 216 - 1,072 150,518.00$
Labor Contingency -$
Total Labor 150,518.00$
ODCs
Travel 500.00$
Scoping Meeting (Printing, Materials, Misc)1,000.00$
Notification Mailer (NOA)5,000.00$
Display Ad Placement 1,200.00$
-$
-$
-$
-$
Subtotal ODCs 7,700.00$
10.0% Mark-Up on ODCs 770.00$
Total ODCs 8,470.00$
TOTAL 158,988.00$
Assumptions
Rates are effective through December 31, 2022 and are subject to annual escalation
Please see scope of work for detailed assumptions
Total
Hours
Total
Dollars
Circlepoint Budget
DocuSign Envelope ID: 14F9F2E1-0C78-4311-A1E3-40287DCA9EA0