Loading...
HomeMy WebLinkAboutAgreement - FCS International, Inc. DBA FirstCarbon Solutions - Electronic Freeway Billboards - Signed 2022-11-16 -1- 4835-2267-0361v1 LAC\04706083 AGREEMENT FOR SERVICES (For contracts over $5,000 - CONSULTANT) This AGREEMENT made this 7th day of June, 2021, 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 1350 Treat Boulevard, Suite 380, Walnut Creek, CA 94597. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on 6/7/2021 and will continue in effect through completion of the scope of services 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. MB DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -2- 4835-2267-0361v1 LAC\04706083 C. Employment of Assistants CONSULTANT may, at the CONSULTANT’S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT’S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT’S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit “D” (“Payment Schedule”). In no event however shall the total compensation paid to CONSULTANT exceed $48,814. B. Invoices CONSULTANT shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment will be made unless CONSULTANT has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit “A”, Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONSULTANT shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT’S costs of doing business. CITY shall not be responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -3- 4835-2267-0361v1 LAC\04706083 ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers’ Compensation CONSULTANT agrees to provide workers’ compensation insurance for CONSULTANT’S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys’ fees, arising out of any injury, disability, or death of any of CONSULTANT’S employees. C. Indemnification of Liability, Duty to Defend 1. As to professional liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, to the extent arising or resulting directly or indirectly from any willful or negligent acts, errors or omissions of CONSULTANT or CONSULTANT’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. 2. As to other liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, arising or resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -4- 4835-2267-0361v1 LAC\04706083 set forth below. Professional Liability Insurance written on a claims made basis (including without limitation the initial policy obtained and all subsequent policies purchased as renewals or replacements) must show the retroactive date, and the retroactive date must be before the earlier of the effective date of the contract or the beginning of the contract work. Claims made Professional Liability Insurance must be maintained, and written evidence of insurance must be provided, for at least five (5) years after the completion of the contract work. If claims made coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the earlier of the effective date of the contract or the beginning of the contract work, CONSULTANT must purchase so called “extended reporting” or “tail” coverage for a minimum of five (5) years after completion of work, which must also show a retroactive date that is before the earlier of the effective date of the contract or the beginning of the contract work. As a condition precedent to CITY’S obligations under this Agreement, CONSULTANT shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONSULTANT is not CITY’S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONSULTANT’S payments; • CITY will not make state or federal unemployment insurance contributions on CONSULTANT’S behalf; • CITY will not withhold state or federal income tax from payment to CONSULTANT; • CITY will not make disability insurance contributions on behalf of CONSULTANT; • CITY will not obtain workers’ compensation insurance on behalf of CONSULTANT. DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -5- 4835-2267-0361v1 LAC\04706083 ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT’S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT’S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of Consultant’s Business/ Death of Consultant. CONSULTANT shall notify CITY of the proposed sale of CONSULTANT’s business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY’ receipt of such notice of sale. If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT. B. Termination by City for Default of Consultant Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY’S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONSULTANT’S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONSULTANT’S breach of any of its representations, warranties or covenants contained in this Agreement. CONSULTANT shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C” which have been fully, competently and timely rendered by CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONSULTANT’S default in the performance of this Agreement or material breach by CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -6- 4835-2267-0361v1 LAC\04706083 may have, CONSULTANT shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONSULTANT for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed-Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONSULTANT, at the CONSULTANT’S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY. D. Transition after Termination Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONSULTANT’s duties by any new consultant hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 (“the Act”) in its current form and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys’ fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys’ Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -7- 4835-2267-0361v1 LAC\04706083 attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. F. Conflict of Interest CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -8- 4835-2267-0361v1 LAC\04706083 H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit “A”, Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. Waiver CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONSULTANT: CITY: FIRSTCARBON SOLUTIONS CITY OF GILROY By: By: Name: Mary Bean Name: Karen Garner Title: Director Title: Community Development Director Social Security or Taxpayer Identification Number 95-3782289 DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -9- 4835-2267-0361v1 LAC\04706083 Approved as to Form ATTEST: City Attorney City Clerk DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “A” SPECIFIC PROVISIONS I. PROJECT MANAGER CONSULTANT shall provide the services indicated on the attached Exhibit “B”, Scope of Services (“Services”). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONSULTANT agrees to assign Mary Bean, 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. DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -2- 4835-2267-0361v1 LAC\04706083 Direct expenses are charges and fees not included in Exhibit “B”. CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT’S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONSULTANT shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY’S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONSULTANT’S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at the CITY’s offices within five (5) business days after CITY’s request. DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -3- 4835-2267-0361v1 LAC\04706083 D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONSULTANT and all other written and oral information developed or received by or for CONSULTANT and all other written and oral information submitted to CONSULTANT in connection with the performance of this Agreement shall be held confidential by CONSULTANT and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONSULTANT’S disclosure thereof) shall be deemed confidential. CONSULTANT shall not use CITY’S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY’S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONSULTANT may retain and use copies thereof subject to Section V.D of this Exhibit “A”. CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONSULTANT shall not be responsible for, and City shall indemnify CONSULTANT from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -4- 4835-2267-0361v1 LAC\04706083 H. NOTICES. Notices are to be sent as follows: CITY: Cindy McCormick City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: Mary Bean FirstCarbon Solutions 1350 Treat Boulevard, Suite 380 Walnut Creek, CA 94597 I. FEDERAL FUNDING REQUIREMENTS. If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. 1. DBE Program CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City-adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONSULTANT warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONSULTANT, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “B” SCOPE OF SERVICES Initial Study/Mitigated Negative Declaration Task 1: Project Initiation FCS will review relevant background material, develop an initial data needs list, and coordinate with the City to schedule a kick-off meeting for the proposed project. During the kick-off meeting, which FCS assumes will be conducted by teleconference, FCS will work with the City to clarify and confirm relevant aspects of the Project Description and identify key points of contact. Following the kick-off meeting, FCS will provide a Request for Information (RFI), which will detail additional information needed to complete CEQA analyses for specific technical areas (air quality, energy etc.). As part of the project initiation process, FCS will conduct a site reconnaissance visit at the proposed electronic billboard location to assess the visibility from freeways, homes, and other buildings. Subtask 1.1: Preparation of Comprehensive Project Description Using the information obtained during project initiation, FCS will prepare a comprehensive Project Description for the City’s review and approval. Pursuant to CEQA Guidelines Section 15124, the Project Description will identify the project location, describe the project characteristics, identify necessary approvals, and list other agencies that may use the document for environmental review. The Project Description will describe the relationship of the project to the City of Gilroy’s General Plan, Zoning Ordinance, and Municipal Code. The Project Description will use graphics and tables to clearly convey relevant information to the reviewer and will include all of the information required to define the proposed project for purposes of CEQA, including background information, a clear summary of the Municipal Code amendments, an explanation of regulatory context pertaining to electronic billboard signs, permitted locations, height and size limits, and a description of the construction/installation process including site plans. The Draft Project Description will be submitted to the City for review and approval prior to the completion of the Administrative Draft IS/MND. It is assumed that the City will provide one set of consolidated, vetted comments (with tracked changes in the Word document) on the Draft Project Description along with a completed RFI to FCS within 2 weeks of submittal. The approved Project Description will form the basis for evaluating the proposed project in the IS/MND. Changes to the Project Description made after the City has issued their approval may require a Change Order and may extend the project schedule. Deliverable • Electronic copy (via email) of the Draft Project Description in PDF and Microsoft Word format to the City of Gilroy. Task 2: Preparation of Technical Analyses DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -2- 4835-2267-0361v1 LAC\04706083 Subtask 2.1: Air Quality, Greenhouse Gas Emissions, and Energy Analysis FCS will prepare an air quality, greenhouse gas (GHG) emissions, and energy analysis to evaluate the construction and operational activities. The analysis will be wholly contained in the IS/MND (no stand-alone technical study will be prepared) and the supporting technical data will be appended to the document. To perform this analysis, the following tasks are required. Air Quality Analysis FCS will prepare an air quality analysis consistent with the requirements of CEQA and guidance presented in the Bay Area Air Quality Management District’s (BAAQMD) CEQA Air Quality Guidelines. Short-term construction emissions associated with installation and/or replacement at the two City identified locations will be quantified using the latest version of California Emissions Estimator Model (CalEEMod). The modeling will incorporate the type and size of the construction footprint, construction phasing schedule, etc. Long-term (i.e., operational) regional criteria air pollutant and precursor estimates will evaluate emissions from the proposed project’s area, stationary, and mobile sources. Mobile-source emissions will be based on annual maintenance trips estimated for the proposed project. There are two scenarios that result in toxic air contaminant (TAC) exposure: when a generator of TACs is constructed near a sensitive receptor, or when a sensitive receptor is placed near a source of TACs. As the proposed project could result in the installation of one new electronic billboard sign, the proposed project would not be considered a sensitive receptor. Based on the proposed level of construction activities, it is anticipated that resulting emissions would not exceed screening thresholds. Therefore, FCS assumes that a Health Risk Assessment (HRA) will not be warranted to identify and quantify the potential construction and/or cumulative health risks. However, if specifically requested by the City or if in the process of evaluating operational air quality emissions it is determined that an HRA is necessary, it would be accomplished as an additional service not included in this Scope of Work. Greenhouse Gas Emissions Analysis FCS will quantify the potential construction and operational GHG emissions using assumptions and methodologies consistent with those used in the air quality analysis. Estimated GHG emissions will be evaluated against appropriate cumulative significance thresholds established in the BAAQMD CEQA guidelines. Pursuant to the CEQA Guidelines Appendix G, FCS will also evaluate the project in the context of consistency with applicable GHG reduction plans. Additional measures or considerations will be proposed, as necessary, to reduce potential impacts to less than significant. Energy Analysis FCS will address the CEQA Guidelines Energy Analysis requirement by assessing whether the proposed project would result in a wasteful, inefficient, or unnecessary use of energy. Based on energy use assumptions from the air quality modeling outputs, the energy analysis will quantify energy usage of the project during construction and DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -3- 4835-2267-0361v1 LAC\04706083 operation, as applicable. Specifically, the energy analysis will calculate on-site equipment and vehicle fuel and electricity consumption during construction activities and during operation of the electronic billboard sign and associated annual maintenance trips, as applicable. Data Needs and Assumptions As discussed under Task 1, Project Initiation, FCS will provide the City with an RFI that includes all necessary construction parameters required to model pollutant emissions. This Scope of Work assumes relevant data (e.g., heavy-duty equipment) for the proposed activities will be provided by the City. If project-specific information is not available, FCS can work with the City to develop reasonable assumptions based on professional experience. This analysis will be completed within six weeks of receipt of the necessary project data and the City-approved Project Description. If changes are made to the Project Description that would require re-modeling for the above Scope of Work, the re- modeling would be accomplished as an additional service not included in this Scope of Work. Subtask 2.2: Biological Resources Analysis FCS will review available documentation, including public databases that document sensitive biological resources potentially occurring in the project location and its vicinity. Following this desktop review, FCS will conduct a reconnaissance-level visit of the project location to verify the status of biological resources on-site. If the potential for presence of regulated biological resources exist on-site, FCS will provide a brief discussion and recommendations for mitigation measures to avoid and minimize potential impacts to biological resources. Regulated biological resources may include sensitive communities, nesting birds, roosting bats, special-status species and their habitats, wetlands, and other waters. If additional surveys are required, FCS can complete that work under separate fee and scope. The biological resources analysis will be wholly contained within the IS/MND. Supporting technical data, including database searches and information gathered during the field survey, will be appended to the CEQA document. Subtask 2.3: Cultural Resources Analysis FCS will assess the potential for existing and undiscovered cultural and tribal cultural resources (TCRs) at the project location, the results of which will be incorporated directly into the IS/MND. The Cultural Resources sections of the IS/MND will detail the results of the records searches, field investigation, and any additional information discovered because of the cultural resources evaluation. This section will include recommendations for further study and/or mitigation within the project area, as needed. Copies of all correspondence and site survey photographs will be appended to the IS/MND. Record Searches FCS will conduct a records search at the Northwest Information Center (NWIC) affiliated with Sonoma State University located in Rohnert Park. The records search will include a DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -4- 4835-2267-0361v1 LAC\04706083 search of previous studies and identified cultural resources within the project site and a 0.5-mile radius. The National Register of Historic Places, the California Register of Historical Resources, the Historic Property Data File, and historic maps and aerial photographs will be consulted, along with other relevant historic data. As part of the records search, FCS will prepare and submit a request to the Native American Heritage Commission (NAHC) to check their Sacred Lands File for TCRs that may be adversely impacted by the proposed project. Please note that compliance with tribal notification and consultation under AB 52 are the responsibilities of lead agencies under CEQA. FCS is available to assist in the process if so desired, and additional consultation services beyond the current Scope of Work are available upon request. FCS will also attempt to locate and contact local historical societies that may have additional information about the project site, or interest in the proposed project. All records search results and correspondence will be appended to the IS/MND. FCS will contact the Regional Paleontological Locality Inventory at the University of California, Berkeley and request a paleontological records search for the subject property and surrounding area. The records search will provide information regarding the relative sensitivity of the parcel to contain fossils. The results of the paleontological records search will be summarized in the Geology and Soil section of the IS/MND and will include recommendations for any mitigation measures deemed appropriate. Pedestrian Survey A pedestrian field survey will be conducted for the project sites by an FCS Archaeologist. Any unrecorded archaeological sites or structures over 45 years in age discovered during the pedestrian survey will need to be initially evaluated for significance and recorded on appropriate Department of Parks and Recreation (DPR) forms. The project site may have already been evaluated for historical resources through a previous survey or analysis; however, FCS cannot determine—prior to completion of the records search or field survey—the need for recordation or the number of additional sites to be recorded. It is currently assumed that no buildings or sites will require evaluation and subsequent recordation on DPR forms, and that a stand-alone report will not be required. Recordation and reporting costs are highly dependent on what is found and will be addressed in a separate Scope of Work, if required. Subtask 2.4: Noise Analysis FCS will prepare a noise impact analysis that will include a quantitative evaluation of short-term (construction) activities and a qualitative evaluation of long-term (operational) activities to satisfy the City’s noise impact analysis requirements. The analysis will be wholly contained in the IS/MND and the supporting technical data will be appended to the document (no stand-alone study will be prepared). Based on our experience with similar projects, the only potential noise or vibration impact would occur if construction activities happened within 50 feet of the property line of a receiving sensitive land use. Installation and/or replacement at the project location would require the short-term DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -5- 4835-2267-0361v1 LAC\04706083 operation of heavy equipment. Therefore, the analysis will evaluate whether construction or site preparation activities associated with the proposed project would generate a substantial temporary increase in ambient noiselevels or generate groundborne vibration levels that would result in potential impacts to nearby sensitive receptors. Because of the minimal operational noise impacts anticipated with this type of project, potential operational noise impacts will be evaluated qualitatively in accordance with evaluating the required CEQA checklist questions related to operational noise impacts. Task 3: Administrative Draft Initial Study/Mitigated Negative Declaration FCS will prepare an Administrative Draft IS/MND for City staff review that will evaluate the impacts associated with the proposed project. The IS/MND will discuss each CEQA Guidelines Appendix G Environmental Checklist impact category, and it will be adequately supported by exhibits (including color GIS mapping, as appropriate). If potentially significant impacts are identified, FCS will draft mitigation measures to reduce impacts to a less than significant level. The following issues will be evaluated in the IS/MND: • Aesthetics • Mineral Resources • Agriculture and Forestry Resources • Noise • Air Quality • Population and Housing • Biological Resources • Public Services • Cultural Resources • Recreation • Energy • Transportation • Geology and Soils • Tribal Cultural Resources • Greenhouse Gas Emissions DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -6- 4835-2267-0361v1 LAC\04706083 • Wildfires • Hazards and Hazardous Materials • Utilities and Service Systems • Hydrology and Water Quality • Mandatory Findings of Significance • Land Use and Planning Many of the issues identified above will not require extensive review; rather a simple response should suffice. That said, based on our recent experience preparing IS/MNDs for similar projects, FCS will provide more detailed analysis for key topics such as aesthetics, air quality (construction emissions and dust), biological resources (nesting birds), cultural resources (undiscovered cultural and tribal cultural resources), noise (related to construction), and transportation (i.e., driver distraction). This Scope of Work assumes the City/applicant will provide visual simulations for the electronic billboard sign, which will be used to evaluate the aesthetic impacts of the signs. Deliverable • Electronic version (via Dropbox) of the Administrative Draft IS/MND to the City. Task 4: Screencheck Draft Initial Study/Mitigated Negative Declaration This Scope of Work assumes the City will provide one set of consolidated, vetted comments (with tracked changes in the Word document) on the Administrative Draft IS/MND. Once FCS receives these comments, FCS will complete revisions and prepare a Screencheck Draft IS/MND for final review. Note that this Scope of Work assumes that one round of City comments and revisions to the Administrative Draft IS/MND will be sufficient. Should additional rounds of review be requested by City staff, FCS shall coordinate with the City regarding the need for additional funds to ensure implementation of all comments and timely publication of the Screencheck IS/MND. Deliverable • Electronic version (via Dropbox) of the Screencheck Draft IS/MND to the City. FCS will provide a track change version of the document in Word format for reference. Task 5: Public Draft Initial Study/Mitigated Negative Declaration Following receipt of a single consolidated set of City comments on the Screencheck Draft IS/MND, FCS will complete revisions and prepare the Public Draft IS/MND. In accordance with the CEQA Guidelines, the IS/MND would be circulated for public review for a minimum of 20 days. Given FCS’s experience with similar projects, it is not anticipated that any state agencies would need to review the document and a 20-day review period would suffice. In addition, the DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -7- 4835-2267-0361v1 LAC\04706083 document would not need to be submitted to the Governor’s Office of Planning and Research State Clearinghouse (SCH). The City will be responsible for drafting the Notice of Intent (and, if necessary, FCS would be responsible for drafting the Notice of Completion). FCS will provide copies of the Draft IS/MND to the City, and the City will be responsible for local distribution, noticing, and posting. Finally, this Scope of Work assumes that City staff will prepare and mail all notices associated with the Draft IS/MND to local agencies and interested parties. FCS will submit the document and required notices necessary to begin the public review period to the SCH via CEQAnet, if a 30-day review period is deemed necessary. Deliverables • Electronic version (via Dropbox) of the Draft IS/MND to the City. • Five hard copies of the Draft IS/MND to the City. If additional copies are requested, a change order may be required to cover costs of producing the additional copies. Task 6: Responses to Comments The CEQA Guidelines indicate that lead agencies are not required to respond to written comments submitted in response to Draft IS/MNDs. However, lead agencies often request that written responses be provided to all written comments to demonstrate that the lead agencies considered the concerns, questions, or objections raised by public agencies or private parties. Additionally, the Responses to Comments will contain an Errata section, which will document necessary revisions to the text of the Draft IS/MND in strikeout-underline format (if required). Accordingly, FCS has budgeted 20 hours of stafftime to respond to written comments received on the Draft IS/MND. Should the volume of comments or the level of technical detail require more than 20 hours of staff time, FCS will require approval of an augment to cover the additional time. Note that FCS has budgeted for one round of single consolidated set of City comments on the draft Responses to Comments prior to finalizing the Final IS/MND. Deliverables • Electronic version (via Dropbox) of the draft Responses to Comments to the City. • Electronic version (via Dropbox) of the Final IS/MND to the City. Task 7: Meetings This Scope of Work assumes that FCS’s Project Manager will attend up to five meetings and/or conference calls. Meetings would consist of public meetings (this Scope of Work assumes two 2- hour long public meetings) and meetings with City staff (this Scope of Work assumes three 1-hour long coordination meetings with City staff will be sufficient). A not-to-exceed budget has been established to cover attendance at the meetings. If the City staff requests additional meeting attendance by FCS staff, or if the amount of time involved in these meetings exceeds the initial budget allocation, FCS will notify the City of the additional costs and obtain authorization for the extra meeting time. DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -8- 4835-2267-0361v1 LAC\04706083 Task 8: Project Management In addition to the research, analysis, communications, and report writing tasks described above, FCS will perform a variety of project management duties to ensure that the CEQA document meets City’s standards of quality and is delivered on time and within budget. These duties will include team supervision and coordination, oral and written communications with City staff, project accounting, and quality assurance review of all deliverable products by FCS’s Project Director and Lead Editor. These services will also include ongoing support to City staff such as providing input to staff reports, regular schedule updates, and discussions of technical issues. This task assumes 16 hours of staff time. Task 9: Mitigation Monitoring and Reporting Program FCS will prepare a comprehensive Mitigation Monitoring and Reporting Program (MMRP), pursuant to CEQA Guidelines Section 15097. The MMRP will contain all mitigation measures identified in the Draft IS/MND. This comprehensive MMRP will provide City staff with a single source of reference to the full range of mitigation measures to be implemented to ensure the achievement of the impact avoidance envisioned in the IS/MND. For each measure or group of similar measures, the agency responsible for ensuring proper implementation will be identified, along with the timing and method of verification. The MMRP will be included as part of the Responses to Comments submittal for City staff review. This Scope of Work assumes the City will provide one set of consolidated, vetted comments (with tracked changes in the Word document) on the MMRP. Once FCS receives these comments, FCS will complete revisions and finalize the MMRP. Deliverables • Electronic version (via Dropbox) of the Administrative Draft MMRP to the City. • Electronic version (via Dropbox) of the MMRP to the City. DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “C” MILESTONE SCHEDULE Task Week Task 1: Project Initiation 1 Submit Draft Project Description 1 Receive Comments on Project Description 3 Project Team Approval of Project Description 5 Task 2: Preparation of Technical Analyses 1-6 Task 3: Administrative Draft Initial Study (IS)/Mitigated Negative Declaration (MND) Submit Administrative Draft IS/MND 7 Receive Comments on Administrative Draft IS/MND 9 Task 4: Screencheck Draft Initial Study/Mitigated Negative Declaration Submit Screencheck Draft Initial Study/Mitigated Negative Declaration 10 Receive Comments on Screencheck Draft IS/MND 11 Task 5: Public Draft Initial Study/Mitigated Negative Declaration Submit Public Draft Initial Study/Mitigated Negative Declaration 12 30 Day Public Comment Period Ends 15 Task 6: Responses to Comments Submit Responses to Comments 16 Receive Comments on Responses to Comments 17 Submit Final Responses to Comments 18 Task 7: Meetings Ongoing Task 8: Project Management Ongoing Task 9: Mitigation Monitoring and Reporting Program Submit Mitigation Monitoring and Reporting Program 16 DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 -2- 4835-2267-0361v1 LAC\04706083 Receive Comments on Mitigation Monitoring and Reporting Program 16 Submit Final Mitigation Monitoring and Reporting Program 16 DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557 4835-2267-0361v1 LAC\04706083 EXHIBIT “D” PAYMENT SCHEDULE Task Fee Task 1: Project Initiation $1,075 Subtask 1.1: Preparation of Comprehensive Project Description $2,750 Task 2: Preparation of Technical Analyses Subtask 2.1: Air Quality, Greenhouse Gas Emissions, and Energy Analysis $6,920 Subtask 2.2: Biological Resources Analysis $5,530 Subtask 2.3: Cultural Resources Analysis $3,150 Subtask 2.4: Noise Analysis $3,920 Task 3: Administrative Draft Initial Study/Mitigated Negative Declaration $10,980 Task 4: Screencheck Draft Initial Study/Mitigated Negative Declaration $3,980 Task 5: Public Draft Initial Study/Mitigated Negative Declaration $1,620 Task 6: Responses to Comments $3,980 Task 7: Meetings $1,570 Task 8: Project Management $2,400 Task 9: Mitigation Monitoring and Reporting Program $660 Total FCS Professional Fee $47,285 Direct Costs $1,529 Total Estimated Fee $48,814 DocuSign Envelope ID: B37C2922-E262-47D6-8578-D748743917C8DocuSign Envelope ID: 86DA81A7-25F0-4D25-9E04-1A8BA17FC557