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21 Staff Report - Environmental Review ServicesCOUNCIL AGENDA REPORT DA 1'h: July 27, 1998 TO: MAYOR AND TOWN COUNC FROM: TOWN MANAGER SUBJECT: MEETING DATE: 8/3/98 ITEM NO. ENVIRONMENTAL REVIEW SERVICES A. ADOPT RESOLUTION AUTHORIZING THE TOWN MANAGER TO EN 1ER INTO AGREEMENTS FOR ENVIRONMENTAL REVIEW SERVICES. B. ADOPT RESOLUTION ESTABLISHINGA TOWN APPROVED ENVIRONMENTAL IMPACT REPORT CONSULTANTS LIST RECOMMENDATION: 1. Adopt resolution authorizing the Town Manager to enter into agreements for environmental review services (Attachment 3); and 2. Adopt resolution establishing a Town Approved Environmental Impact Report Consultants List (Attachment 4). BACKGROUND: On May 15, 1998 the Town Council reviewed a report with recommendations to streamline the environmental review process for development projects. The report included recommendations that only one primary consultant and one alternate consultant be retained rather than the rotational consultant system now in place. The recommendation also proposed eliminating the prohibition that the environmental consultant preparing the Initial Study is automatically excluded from submitting a proposal to prepare an Environmental Impact Report (EIR) for the same project. In response to the report, the Council formed a sub -committee consisting of the Mayor, Planning Commission Chair, and Planning Director to interview potential primary and alternate consultants. Town staff was also instructed to compile a Town Approved Environmental Impact Report Consultants List. DISCUSSION: On July 17, 1998 the sub -committee interviewed three fins who submitted environmental consultant proposals to the Town (Environmental Science Associate, Robert Bein, William Frost & Associates, and Geier & Geier Consulting, Inc.). The sub -committee recommended that the Town retain Geier & Geier Consulting, Inc. as the primary environmental consultant and Robert Bein, William Frost & Associates as the alternate. Attached to this report is a matrix of the experience and qualifications of each firm evaluated and the Town Approved Environmental Impact Report Preparation Consultants List compiled by staff (See Attachments 1 & 2). PREPARED BY: LEE E. BOWMAN PLANNING D Reviewed by: Reformatted: 10/23/95 Attomey 12Th finance Revised: 7/27/98 4:44 pm PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: AGREEMENTS FOR ENVIRONMENTAL REVIEW SERVICES July 27, 1998 ENVIRONMENTAL ASSESSMENTS: This action is not a project defined under CEQA, and no further action is required. FISCAL IMPACT: Revenues and expenses related to deposit accounts are not included as part of the budget process. Transfer of funds from deposit accounts to revenue accounts are made by Finance at the time related expenditures are incurred. Adjustments to revenue and expenditure budgets are posted in conjunction with the transfer of funds. The environmental assessment deposit fee paid to the Town by each applicant is $2,500 per project application. The Planning Department anticipates approximately 15 projects annually that will require the preparation of an Initial Study and Negative Declaration. It is anticipated that this will result in approximately $37,500 in funds being transferred from Deposit Account # 100-26310 into Revenue Account # 3120-48310 and Expense Account # 3120-61310 for the fiscal year. Attachments: 1. Environmental Consultant Matrix 2. Town Approved Environmental Impact Report Preparation Consultants List 3. Draft Resolution Authorizing the Town Manager to Enter into Agreements for Environmental Review Services (with Agreement No. 1-Primary Environmental Consultant Contract and Agreement No. 2-Alternate Environmental Consultant Contract). 4. Draft Resolution establishing a Town Approved Environmental Impact Report Consultants List Distribution: LEB:EO N:1DE VICNCLRPTS\EIR-CON. TC 1 BnYlronnieetel Sgience Aesvc atPs i i Charles Bennett R;c6erF t: Paul Curtis Reliti; and Laura ttiaiiiosi4: Worthington- •• Forbes Valerie Geier Envirortroshtat- Assessment Experience Prepared Initial Studies, Neg. Dec.'s, EIR's for individual projects, Specific Plans, and GP (over 175). CEQA &NEPA document preparation experience. RBF Staff has prepared over 500 CECA and NEPA documents Firm has over 40 years of experience preparing hundreds of environmental documents (both CEQA & NEPA) Aesassm ents Rt,e k ert for Town ot: Los Gatos ESA has prepared 16 Initial Studies/Neg. Dec's; 4 EIR's since 1979 None, but RBF is preparing General Plan Update & EIR Valerie Geier has 20 years of experience personally preparing environmental assessments for the Town including: 50+ Initial Studies/Negative Declarations and 2 EIR's. Notabie:Pro�ecft{.tsonat Casts Ousted Wst Cstatts Comments RFP Co:nrnents Fisher School Cellu Facility EIR; Sant_abor Cost Rosa Heights ;ceased 50 % Subdivision EIR; for expert Shady Lane/Shann, witness,Rd. Subdivision Ellpostions. or CNG Fueling Faci i..irt testimony; ND Billable non -salary cost includes actual cost plus a 15% service charge for overhead and profit. Includes: legal services, accounting, computer time, rental, programing cost, lab charges, reproduction, communication, travel & travel expenses Billable Transportation Cost Include: tolls, parking fees and auto use (S20/ half -day or fraction thereof. or the Federal mileage rate, which ever is greater) Concise, but proposal does not address Environmental Assessment limitation of 52,500 Does not specify specific individual or level of staff/projectmgr. assigned to typical Town projects: Los Gatos Country Club EIR; Odd .tal Study and Fellows Master PIN Dec. fees EIR (Saratoga); Sar d. except for Cruz Gateway Plazcst beyond EIR; Morgan Park toe of work or Coyote Ranch ISIt required to (Morgan Hill); Nelscrify document Gardens EIR info or (Saratoga); Route 21reparation. Interstate 880 Monet work to Interchange authorized by Environmental Town. Evaluation Blueprinting, reproduction, messenger service, and other direct expenses not covered by scope of work will be charged as an additional cost A 15% subconsultant management fee added to direct cost of subconsultants services retained. Comp. Aided Design & Drafting = S35/hr, Consultation for Legal Actions = 5250/hr; Vehicle Mileage = S.35hniie Very detailed proposal; Full - service firm with extensive resources. Other than Laura Worthington -Forbes, proposal does not specify individual or level of staff assigned to typical Town projects. RBF will prepare all CEQA required notices EIR's: Old Town, Brezocsky & Yabrofial Study and Subdivision; ND's: Ltg, Dec. fees Housing Element,LGd. except for Blvd Plan, LG Creek,st beyond Bridge, Comm. Hospoe of work or Master Plan, ; required to Woodworker's R&D.: -Si document Office Complex, LG 'nfo or Christian Church, reparation Challenger School. hone! work to Tollhouse, Landmar:,ithorized by Dev.: IS's: SummerHi Town. Homes CEQA=California Environmental Quality Act NEPA=Nation Environmental Policy Act EIR=Environmental Impact Report NO or Neg. Dec.=Negative Declaration IS=Initial Study Additional services beyond scope of work will be billed on a time - plus -expenses basis negotiated and approved prior to commencement of work. No 15% surcharge Average staff for labor and meetings — $90/hr, Additional document reproduction charge = 55.25/copy; Travel Expense = 538.00 Concise Proposal. Extensive project environmenatl review experience in Town. Lowest tabor cost & travel expense rate. Geier & Geier is also State certified as a minority/women's business enterprise Page 1 ATTACHMENT 1 LIST OF APPROVED ENVIRONMENTAL IMPACT REPORT PREPARATION CONSULTANTS Brady, LSA 2215 Fifth Street Berkeley, CA 94710 Contact: David R. Clore, Principal (510) 540-7331 (510) 540-7344 fax David J. Powers & Associates 1885 The Alameda, Suite 204 San Jose, CA 95126 Contact: David J. Powers, Principal (408) 248-3500 (408) 248-9641 fax Environmental Science Associates (ESA) 225 Bush Street, Suite 1700 San Francisco, CA 94104 Contact: Charles Bennett, Project Director (415) 896-5900 (415) 896-0332 fax Geier & Geier Consulting, Inc. P.O. Box 5054 Berkeley, CA 94705-5054 Contact: Valerie Geier, Principal (510) 644-2535 (510) 644-2534 fax Ibis Environmental Services 1655 Mar West Street Tiburon, CA 94920 Contact: Anne Flannery, Principal (415) 435-8835 (415) 435-4076 fax Location: 2738 Webster Street Berkeley, CA 94705 Page lof 2 ATTACHMENT 2 LIST OF APPROVED ENVIRONMENTAL IMPACT REPORT PREPARATION CONSULTANTS Parson Harland Bartholomew & Associates, Inc. 2233 Watt Avenue, Suite 330 Sacramento, CA 95825 Contact: Anders J. Hauge, Vice President/ Richard Morehouse, Project Mgr. (916) 483-0481 (916) 483-3364 fax (800) 883-7300 Corporate HQ (Pasadena, CA) Robert Bein, William Frost & Associates (RBF) 226 Airport Parkway, Suite 600 San Jose, CA 95110-3705 Contact: Paul Curtis, Planning Prg. Mgr./Laura Worthington -Forbes, Senior Proj. Dir. (408) 451-9260 (408) 451-9261 fax (408) 451-0239 Direct Dial -Paul Curtis (408) 451-0296 Direct Dial -Laura Worthington -Forbes Thomas Reid Associates 560 Waverley Street, Suite 201 (Box 880) Palo Alto, CA 94301 Contact: Karen G. Weissman, Principal (650) 327-0429 (650) 327-4024 fax The Zahn Group, Inc. The Mills Building, Suite 406 220 Montgomery Street San Francisco, CA 94104 Contact: Philip Bender, Associate (415) 421-6261 (415) 421-6060 fax C:\_ECQO\_ENV IRO\EIR-CON.LST Page 2of 2 RESOLUTION 1998- RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO ENTER INTO AGREEMENTS FOR ENVIRONMENTAL REVIEW SERVICES RESOLVED, that due to the uniqueness and special characteristics of environmental consulting in that qualifications, experience and expert knowledge of the California Environmental Quality Act need to be verified and the fact that the services rendered are borne by a project applicant and not the Town, it would be more advantageous to acquire these services by negotiated proposals & contracts. RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter into agreement with Geier and Geier Consulting, Incorporated to provide environmental review services as the Primary Environmental Consultant for the Town. This agreement is titled Agreement No. 1 (Exhibit A). RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter into agreement with Robert Bein, William Frost and Associates to provide environmental review services as the Alternate Environmental Consultant for the Town. This agreement is titled Agreement No. 2 (Exhibit B). RESOLVED, by the Town Council that the term of these contracts are for a fixed one year period and that the Town retains the option with mutual consent of the individual consultants to renew each contract annually at the end of the Town's fiscal year. Should the Town not renew a contract, the award and authorization of the contracts contained in this resolution shall automatically expire. N:\DEV \RESOS\ENV-CON.RES 3 FURTHER RESOLVED, by the Town Council that the Town Manager is authorized and directed to execute the attached agreements for environmental review services and the preparation of environmental documents in the name and in behalf of the TOWN OF LOS GATOS. PASSED AND ADOPTED at a regular meeting of the Town Council held on the 3rd day of August, 1998, by the following vote: COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: /s/ Linda Lubeck MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: /s/ Marian V. Cosgrove CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA N:1DEV \RESOS 1EN V -C ON. RES AGREEMENT FOR PRIMARY ENVIRONMENTAL REVIEW CONSULTANT SERVICES THIS AGREEMENT is entered into this day of , 19, by and between the Town of Los Gatos, State of California, herein called the "Town", and GEIER AND GEIER CONSULTING, INC., engaged in providing primary environmental review consulting services herein called the "Consultant", RECITALS A. The Town is considering undertaking activities to streamline the Town's environmental review process and improve efficiency by retaining one Primary and one Alternate Environmental Consultant to conduct environmental assessments and prepare environmental documents for Town projects. B. The Town desires to engage Geier and Geier Consulting, Inc. as the Primary Environmental Consultant to provide consulting services in conjunction with this streamlining effort, because of the firm's experience and qualifications to perform the desired work. C. The Consultant represents and affirms that it is qualified and willing to perform the desired work pursuant to this Agreement. AGREEMENTS NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: SCOPE OF WORK Primary Environmental Consulting Firm shall be responsible for the following: • Attending a minimum of one preliminary scoping meeting with staff for any referred projects that are not exempt from CEQA. • Visiting the project site and documenting existing site conditions. • Preparation of Initial Studies within 3 weeks after a project has been deemed complete and referred to the consultant by the Town. The consultant shall provide 5 copies of the draft and 25 copies of the final draft Initial Study. The consultant shall also provide electronic file copies of the final document in a WordPerfect 5.1 or approved word processing software format via a 3 1/2 inch floppy disk medium at the time that the final draft copies are delivered to the Town. Revised: July 27, 1998 C:\_ECQ0\_ENVIRO\ENVCON1.CON Page 1 of 8 EXHIRIT A ■ Preparation of Negative Declarations within 4 weeks after a project has been deemed complete and referred to the consultant by the Town. The consultant shall provide 5 copies of the draft and 25 copies of the final draft Initial Study. The consultant shall also provide electronic file copies of the final document in a WordPerfect 5.1 or approved word processing software format via a 3 1/2 inch floppy disk medium at the time that the final draft copies are delivered to the Town. ■ Preparation of Mitigation Monitoring Programs for each project as required by CEQA. Format shall be approved by the Town and electronic file copies shall also be provided. • Attending a minimum of one Planning Commission and one Town Council meeting as required by the Planning Director for each project. Additional meetings will be authorized by the Planning Department on an "as needed basis", and the Town will be charged only for time and materials. Funds to pay for any additional meetings will be provided by the applicant to the Town prior to the meeting. ■ Preparation of follow up clarification letters or documentation for any Initial Studies or Negative Declaration (e.g. memos to clarify sections or language in a prepared document, providing a copies of acoustical/traffic analysis data, copies of field visit notes/dates, etc.) on an as needed basis as required by the Planning Director at no additional cost to the Town. If the Primary Environmental Consultant is unable to perform the duties for a referred project, the project will be referred to the Alternate Environmental Consultant. (EIR PREPARATION) • If an EIR is recommended as a result of the Initial Study or if significant evidence is clearly evident that an EIR is warranted, the Planning Director has the discretion to choose one of three options: 1)Ask the Primary Environmental Consultant for an estimate to prepare the EIR based on a scope of work developed by the Planning Department and enter into a contract for its preparation; 2) If the Primary Environmental Consultant is unable to prepare the document, the Planning Director may ask the Alternate Environmental Consultant for an estimate to prepare the EIR based on a scope of work developed by the Planning Department and enter into a contract for its preparation; Dr 3) prepare a Request for Proposal for the EIR preparation and send it out to the list of Town authorized EIR Preparation Consultants. The requirements and scope of work for each EIR shall be developed by the Planning Department on a case -by -case basis and shall be incorporated into the contract for the EIR. 1. Compensation. Prior to the Town authorizing the preparation of an Initial Study, the Planning Director will send the consultant an "Environmental Services Initial Study Procedure Authorization to Proceed" letter. The Consultant shall sign the authorization and return it to the Town. Upon receipt of this letter, the Town of Los Gatos shall compensate each environmental consulting firm referred a project on the following basis: Revised: July 27, 1998 C:\_ECQ0\_ENV1RO\ENVCON1.CON Page 2 of 8 • A maximum of $2,500 per project that requires the preparation of an Initial Study, Negative Declaration, and/or Mitigation Monitoring Plan. This shall include attendance at the meetings noted above, the specified number of draft, final, and electronic file copies, and follow up clarification letters or documentation regarding the preparation of these documents. • Cost incurred by the consultant for additional analysis beyond the scope of the original Initial Study or Negative Declaration that are not specifically required to clarify information within the documents or clarify issues relating to the preparation of the environmental assessment shall be authorized by the Town prior to the preparation of the analysis or supplementary documents. • Cost for preparation for an EIR shall be determined by a scope of work developed by the Planning Department on a project specific case -by -case basis. The full cost for preparing an EIR shall be borne by the project applicant. • Compensation shall be provide to the consultant either by an agreed upon payment/billing schedule with specific milestones or upon the completion of all the items noted in the scope of work. Billing shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. 2. Time of Performance. The services of the Consultant are for a fixed one year period that will commence upon the execution of the contract and the Town retains the option with the mutual consent of the consultant to renew each contract annually at the end of the Town's fiscal year. Should the Town not renew a contract, the award and authorization of the contract shall automatically expire. The Town shall give the Consultant at least 30 days notice, prior to the cancellation or expiration of the contract. The individual time of performance schedule for each project referred to the Consultant is required to be performed as outlined in the scope of work section of this contract. 3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to the Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for the Consultant to practice its profession. Consultant represents and warrants to Town that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos and shall be able to provide proof of insurance upon request. Revised: July 27, 1998 C:1 ECQOI ENVIROIENVCON1.CON Page 3 of 8 4. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 5. Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town's property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 6. Availability of Records. Consultant shall maintain the records supporting this billing for not less than three (3) years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. 7. Project Manager. The Project Manager for the Consultant for the work under this Agreement shall be Valerie Chew Geier, Principal. 8. Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the prior written consent of the Town. 9. Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: To Consultant: Revised: July 27, 1998 C:\_ECQ0\_ENVIRO\ENVCON1.CON Lee E. Bowman, Planning Director 110 E. Main Street Los Gatos, CA 95030 Valerie Chew Geier P.O. Box 5054 Berkeley, CA 94705-5054 Page 4 of 8 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 10. Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing. 11. Conflict of Interest. Consultant understands that its professional responsibilities is solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 12. Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. Revised: July 27, 1998 C:\_ECQ01_ENV1R01ENVCON1.CON Page 5 of 8 13. Insurance. A. Minimum Scope of Insurance: Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. B. General Liability: The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of Consultant, premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions. ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers. iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Revised: July 27, 1998 C:\_ECQ0\_ENV1RO\ENVCON1.CON Page 6 of 8 C. All Coverages: Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. D. In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers° Compensation insurance for their respective employees. 14. Indemnification. The Consultant shall save, keep and hold harmless indemnify and defend the Town its officers, agent, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any sub -consultant. 15. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 16. Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior or Municipal Court of the County of Santa Clara. 17. Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen (30) days written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement pursuant to Exhibit A hereto, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. Revised: July 27, 1998 C:1_ECQO1_ENVIRO\ENVCON1.CON Page 7 of 8 18. Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 19. Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 20. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as of the date indicated on page one (1). Town of Los Gatos David W. Knapp, Town Manager Consultant: Town of Los Gatos Print Name Title ATTEST: Clerk of the Town of Los Gatos, Approved as to Form: Los Gatos, California Marian V. Cosgrove, Town Clerk Orry P. Korb, Town Attorney Revised: July 27, 1998 C:\_ECQ01_ENVIRO\ENVCON1.CON Page 8 of 8 AGREEMENT FOR PRIMARY ENVIRONMENTAL REVIEW CONSULTANT SERVICES THIS AGREEMENT is entered into this day of , 19, by and between the Town of Los Gatos, State of California, herein called the "Town", and ROBERT BEIN, WILLIAM FROST & ASSOCIATES, engaged in providing primary environmental review consulting services herein called the "Consultant". RECITALS A. The Town is considering undertaking activities to streamline the Town's environmental review process and improve efficiency by retaining one Primary and one Alternate Environmental Consultant to conduct environmental assessments and prepare environmental documents for Town projects. B. The Town desires to engage Robert Bein, William Frost & Associates as the Alternate Environmental Consultant to provide consulting services in conjunction with this streamlining effort, because of the firm's experience and qualifications to perform the desired work. C. The Consultant represents and affirms that it is qualified and willing to perform the desired work pursuant to this Agreement. AGREEMENTS NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: SCOPE OF WORK The Alternate Environmental Consulting Firm shall be responsible for the following, if the Town's Primary Environmental Consulting Firm is unable to perform its duties or cannot accept a reffered project: • Attending a minimum of one preliminary scoping meeting with staff for any referred projects that are not exempt from CEQA. • Visiting the project site and documenting existing site conditions. • Preparation of Initial Studies within 3 weeks after a project has been deemed complete and referred to the consultant by the Town. The consultant shall provide 5 copies of the draft and 25 copies of the final draft Initial Study. The consultant shall also provide electronic file copies of the final document in a WordPerfect 5.1 or approved word processing software format via a 3 1/2 inch floppy disk medium at the time that the final draft copies are delivered to the Town. Revised: July 27, 1998 C:\_ECQ0\_ENV1RO\ENVCON2.CON Page 1 of 8 EXHIBIT B • Preparation of Negative Declarations within 4 weeks after a project has been deemed complete and referred to the consultant by the Town. The consultant shall provide 5 copies of the draft and 25 copies of the final draft Initial Study. The consultant shall also provide electronic file copies of the final document in a WordPerfect 5.1 or approved word processing software format via a 3 1/2 inch floppy disk medium at the time that the final draft copies are delivered to the Town. • Preparation of Mitigation Monitoring Programs for each project as required by CEQA. Format shall be approved by the Town and electronic file copies shall also be provided. • Attending a minimum of one Planning Commission and one Town Council meeting as required by the Planning Director for each project. Additional meetings will be authorized by the Planning Department on an "as needed basis", and the Town will be charged only for time and materials. Funds to pay for any additional meetings will be provided by the applicant to the Town prior to the meeting. • Preparation of follow up clarification letters or documentation for any Initial Studies or Negative Declaration (e.g. memos to clarify sections or language in a prepared document, providing a copies of acoustical/traffic analysis data, copies of field visit notes/dates, etc.) on an as needed basis as required by the Planning Director at no additional cost to the Town. If the Primary Environmental Consultant is unable to perform the duties for a referred project, the project will be referred to the Alternate Environmental Consultant. (EIR PREPARATION) • If an EIR is recommended as a result of the Initial Study or if significant evidence is clearly evident that an EIR is warranted, the Planning Director has the discretion to choose one of three options: 1)Ask the Primary Environmental Consultant for an estimate to prepare the EIR based on a scope of work developed by the Planning Department and enter into a contract for its preparation; 2) If the Primary Environmental Consultant is unable to prepare the document, the Planning Director may ask the Alternate Environmental Consultant for an estimate to prepare the EIR based on a scope of work developed by the Planning Department and enter into a contract for its preparation; la 3) prepare a Request for Proposal for the EIR preparation and send it out to the list of Town authorized EIR Preparation Consultants. The requirements and scope of work for each EIR shall be developed by the Planning Department on a case -by -case basis and shall be incorporated into the contract for the EIR, 1. Compensation. Prior to the Town authorizing the preparation of an Initial Study, the Planning Director will send the consultant an "Environmental Services Initial Study Procedure Authorization to Proceed" letter. The Consultant shall sign the authorization and return it to the Town. Upon receipt of this letter, the Town of Los Gatos shall compensate each environmental consulting firm referred a project on the following basis: Revised: July 27, 1998 C: \_EC Q O1_EN V IRO\ EN V C O N2. C ON Page 2 of 8 • A maximum of $2,500 per project that requires the preparation of an Initial Study, Negative Declaration, and/or Mitigation Monitoring Plan. This shall include attendance at the meetings noted above, the specified number of draft, final, and electronic file copies, and follow up clarification letters or documentation regarding the preparation of these documents. • Cost incurred by the consultant for additional analysis beyond the scope of the original Initial Study or Negative Declaration that are not specifically required to clarify information within the documents or clarify issues relating to the preparation of the environmental assessment shall be authorized by the Town prior to the preparation of the analysis or supplementary documents. • Cost for preparation for an EIR shall be determined by a scope of work developed by the Planning Department on a project specific case -by -case basis. The full cost for preparing an EIR shall be borne by the project applicant. • Compensation shall be provide to the consultant either by an agreed upon payment/billing schedule with specific milestones or upon the completion of all the items noted in the scope of work. Billing shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. 2. Time of Performance. The services of the Consultant are for a fixed one year period that will commence upon the execution of the contract and the Town retains the option with the mutual consent of the consultant to renew each contract annually at the end of the Town's fiscal year. Should the Town not renew a contract, the award and authorization of the contract shall automatically expire. The Town shall give the Consultant at least 30 days notice, prior to the cancellation or expiration of the contract. The individual time of performance schedule for each project referred to the Consultant is required to be performed as outlined in the scope of work section of this contract. 3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to the Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for the Consultant to practice its profession. Consultant represents and warrants to Town that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos and shall be able to provide proof of insurance upon request. Revised: July 27, 1998 C:\_ECQM_ENVIRO\ENVCON2.CON Page 3 of 8 4. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 5. Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town's property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 6. Availability of Records. Consultant shall maintain the records supporting this billing for not less than three (3) years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. 7. Project Manager. The Project Manager for the Consultant for the work under this Agreement shall be Valerie Chew Geier, Principal. 8. Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the prior written consent of the Town. 9. Notice,. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: To Consultant: Revised: July 27, 1998 C:\ ECQO\ ENVIRO\ENVCON2.CON Lee E. Bowman, Planning Director 110 E. Main Street Los Gatos, CA 95030 Valerie Chew Geier P.O. Box 5054 Berkeley, CA 94705-5054 Page 4 of 8 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 10. Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing. 11. Conflict of Interest. Consultant understands that its professional responsibilities is solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 12. Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. Revised: July 27, 1998 C:\ ECQO\ ENVIRO\ENVCON2.CON Page 5 of 8 13. Jnsurance. A. Minimum Scope of Insurance: Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. B. General Liability: The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of Consultant, premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions. ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers. iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Revised: July 27, 1998 C:\_ECQ0\_ENVIRMENVCON2.CON Page 6 of 8 C. All Coverages: Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. D. In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. 14. Indemnification. The Consultant shall save, keep and hold harmless indemnify and defend the Town its officers, agent, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any sub -consultant. 15. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 16. Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior or Municipal Court of the County of Santa Clara. 17. Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen (30) days written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement pursuant to Exhibit A hereto, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. Revised: July 27, 1998 C:\_ECQ01_ENVIRMENVCON2.CON Page 7 of 8 18. Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 19. Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees, including costs of appeal. 20. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as of the date indicated on page one (1). Town of Los Gatos David W. Knapp, Town Manager Consultant: Town of Los Gatos Print Name Title ATTEST: Clerk of the Town of Los Gatos, Approved as to Form: Los Gatos, California Marian V. Cosgrove, Town Clerk Orry P. Korb, Town Attorney Revised: July 27, 1998 C:\ ECQO\ ENVIRO\ENVCON2.CON Page 8 of 8 RESOLUTION 1998- RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS ESTABLISHING AN APPROVED ENVIRONMENTAL IMPACT REPORT CONSULTANTS LIST RESOLVED, that due to the uniqueness and special characteristics of environmental consulting in that qualifications, experience and expert knowledge of the California Environmental Quality Act need to be verified, it would be advantageous to establish a list of qualified environmental consulting firms that are capable of preparing Environmental Impact Reports for projects within the Sphere of Influence Boundaries. RESOLVED, by the Town Council that the Planning Director is authorized to compile a list of Town approved environmental consulting firms for the preparation of Environmental Impact Reports, and that the Planning Director is empowered to periodically update this list as needed. RESOLVED, by the Town Council that the TOWN OF LOS GATOS shall use this prepared list in the solicitation of Request for Proposal (RFP's) for the preparation of Environmental Impact Reports that are not prepared by the Town's Primary or Alternate Environmental Consultants. N:\DEV \RESOS\EIR-LST.RES ATTAC 'MENT 4 PASSED AND ADOPTED at a regular meeting of the Town Council held on the 3rd day of August, 1998, by the following vote: COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: /s/ Linda Lubeck MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: /s/ Marian V. Cosgrove CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA N :1 D E V \RES OS 1 E1R-LS T. RES INTERNAL TRACKING DEPTMENT: AGENDA ITEM: .. ,. /kj RESO/ORD NUMBER: DATE BY LIST IN BOOK 1 1 ON DISC OR SHARE. FORM SENT TO DEPT. 1 PUBLISH IF REQUIRED - Date of Publication 77 ORDINANCES ONLY SIGNATURE AND /s/ COPY (1 EACH) returned, LIST ON SIGNATURE TRACKING & SEND TO MAYOR 1WHEN Y� MAIL TO DISTRIBUTION LIST NO.of COPIES: ' ' ,. PROOF OF MAILING PREPARED 1 SIGN BY CLERK/SEAL ENTER INTO ECM ORDINANCE/RESOLUTION FILE FILE IN VAULT CODIFICATION IF ORDINANCE cl k: d I6: Wthalotdta2 RESOLUTION 1998-134 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO ENTER INTO AGREEMENTS FOR ENVIRONMENTAL REVIEW SERVICES RESOLVED, that due to the uniqueness and special characteristics of environmental consulting in that qualifications, experience and expert knowledge of the California Environmental Quality Act need to be verified and the fact that the services rendered are borne by a project applicant and not the Town, it would be more advantageous to acquire these services by negotiated proposals & contracts. RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter into agreement with Geier and Geier Consulting, Incorporated to provide environmental review services as the Primary Environmental Consultant for the Town. This agreement is titled Agreement No. 1 (Exhibit A). RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter into agreement with Robert Bein, William Frost and Associates to provide environmental review services as the Alternate Environmental Consultant for the Town. This agreement is titled Agreement No. 2 (Exhibit B). RESOLVED, by the Town Council that the term of these contracts are for a fixed one year period and that the Town retains the option with mutual consent of the individual consultants to renew each contract annually at the end of the Town's fiscal year. Should the Town not renew a contract, the award and authorization of the contracts contained in this resolution shall automatically expire. N : \ DEV \RESO S\ENV -CON. RES FURTHER RESOLVED, by the Town Council that the Town Manager is authorized and directed to execute the attached agreements for environmental review services and the preparation of environmental documents in the name and in behalf of the TOWN OF LOS GATOS, PASSED AND ADOPTED at a regular meeting of the Town Council held on the 3rd day of August, 1998, by the following vote: COUNCIL MEMBERS: AYES: Randy Attaway, Steven Blanton, Jan Hutchins, Mayor Linda Lubeck NAYS: None ABSENT: None ABSTAIN: Joanne Benjamin SIGNED: /s/ Linda Lubeck MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: /s/ Marian V. Cosgrove CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA N: \DEV\RESOS\ENV-CON. RES OFFICE OF T- AGR../ AGREEMENT FOR PRIMARY ENVIRONMENTAL REVIEW CONSITha RESt. THIS AGREEMENT is entered into this day of and between the Town of Los Gatos, State of California, herein called the "Town", ai. AND GEIER CONSULTING, INC., engaged in providing primary environmental consulting services herein called the "Consultant". RECITALS 4 A. The Town is considering undertaking activities to streamline the Town's environmental review process and improve efficiency by retaining one Primary and one Alternate Environmental Consultant to conduct environmental assessments and prepare environmental documents for Town projects. B. The Town desires to engage Geier and Geier Consulting, Inc. as the Primary Environmental Consultant to provide consulting services in conjunction with this streamlining effort, because of the firm's experience and qualifications to perform the desired work. C. The Consultant represents and affirms that it is qualified and willing to perform the desired work pursuant to this Agreement. AGREEMENTS NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: SCOPE OF WORK Primary Environmental Consulting Firm shall be responsible for the following: • Attending a minimum of one preliminary scoping meeting with staff for any referred projects that are not exempt from CEQA. • Visiting the project site and documenting existing site conditions. • Preparation of Initial Studies within 3 weeks after a project has been deemed complete and referred to the consultant by the Town. The consultant shall provide 5 copies of the draft and 25 copies of the final draft Initial Study. The consultant shall also provide electronic file copies of the final document in a WordPerfect 5.1 or approved word processing software format via a 3 1/2 inch floppy disk medium at the time that the final draft copies are delivered to the Town. Revised: July 31, 1998 C:\_ECQ01_ENV1RO\ENVCON1.CON Page 1 of 8 • A maximum of $2,500 per project that requires the preparation of an Initial Study, Negative Declaration, and/or Mitigation Monitoring Plan. This shall include attendance at the meetings noted above, the specified number of draft, final, and electronic file copies, and follow up clarification letters or documentation regarding the preparation of these documents. • Cost incurred by the consultant for additional analysis beyond the scope of the original Initial Study or Negative Declaration that are not specifically required to clarify information within the documents or clarify issues relating to the preparation of the environmental assessment shall be authorized by the Town prior to the preparation of the analysis or supplementary documents. ■ Cost for preparation for an EIR shall be determined by a scope of work developed by the Planning Department on a project specific case -by -case basis. The full cost for preparing an EIR shall be borne by the project applicant. • Compensation shall be provide to the consultant either by an agreed upon payment/billing schedule with specific milestones or upon the completion of all the items noted in the scope of work. Billing shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. 2. Time of Performance. The services of the Consultant are for a fixed one year period that will commence upon the execution of the contract and the Town retains the option with the mutual consent of the consultant to renew each contract annually at the end of the Town's fiscal year. Should the Town not renew a contract, the award and authorization of the contract shall automatically expire. The Town shall give the Consultant at least 30 days notice, prior to the cancellation or expiration of the contract. The individual time of performance schedule for each project referred to the Consultant is required to be performed as outlined in the scope of work section of this contract. 3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to the Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for the Consultant to practice its profession. Consultant represents and warrants to Town that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos and shall be able to provide proof of insurance upon request. Revised: July 31, 1998 C:\_ECQM_ENVIRO\ENVCON1.CON Page 3 of 8 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 10. Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing. 11. Conflict of Interest. Consultant understands that its professional responsibilities is solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 12. Egual Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. Revised: July 31, 1998 C:1_ECQO1_ENV IRO\ENV CON 1. CON Page 5 of 8 C. All Coverages: Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. D. In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers° Compensation insurance for their respective employees. 14. Indemnification. The Consultant shall save, keep and hold harmless indemnify and defend the Town its officers, agent, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any sub -consultant. 15. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 16. Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior or Municipal Court of the County of Santa Clara. 17. Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen (30) days written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement pursuant to Exhibit A hereto, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. Revised: July 31, 1998 C:\_ECQ0\_ENV1RO\ENVCON1.CON Page 7 of 8 OFFICE OF THE TOWN CLERK AGR IHN ORD AGREEMENT FOR ALTERNATE ENVIRONMENTAL REVIEW CONSULTANT SERVICES RESO THIS AGREEMENT is entered into this day of , 19, by and between the Town of Los Gatos, State of California, herein called the "Town", and ROBERT BEIN, WILLIAM FROST & ASSOCIATES, engaged in providing alternate environmental review consulting services herein called the "Consultant". RECITALS A. The Town is considering undertaking activities to streamline the Town's environmental review process and improve efficiency by retaining one Primary and one Alternate Environmental Consultant to conduct environmental assessments and prepare environmental documents for Town projects. B. The Town desires to engage Robert Bein, William Frost & Associates as the Alternate Environmental Consultant to provide consulting services in conjunction with this streamlining effort, because of the firm's experience and qualifications to perform the desired work. C. The Consultant represents and affirms that it is qualified and willing to perform the desired work pursuant to this Agreement. AGREEMENTS NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: SCOPE OF WORK The Alternate Environmental Consulting Firm shall be responsible for the following, if the Town's Primary Environmental Consulting Firm is unable to perform its duties or cannot accept a reffered project: • Attending a minimum of one preliminary scoping meeting with staff for any referred projects that are not exempt from CEQA, • Visiting the project site and documenting existing site conditions. • Preparation of Initial Studies within 3 weeks after a project has been deemed complete and referred to the consultant by the Town. The consultant shall provide 5 copies of the draft and 25 copies of the final draft Initial Study. The consultant shall also provide electronic file copies of the final document in a WordPerfect 5.1 or approved word processing software format via a 3 1/2 inch floppy disk medium at the time that the final draft copies are delivered to the Town. Revised: July 31, 1998 C:1_ECQO\_ENV IRO\ENVCON2. CON Page 1 of 8 • A maximum of $2,500 per project that requires the preparation of an Initial Study, Negative Declaration, and/or Mitigation Monitoring Plan. This shall include attendance at the meetings noted above, the specified number of draft, final, and electronic file copies, and follow up clarification letters or documentation regarding the preparation of these documents. • Cost incurred by the consultant for additional analysis beyond the scope of the original Initial Study or Negative Declaration that are not specifically required to clarify information within the documents or clarify issues relating to the preparation of the environmental assessment shall be authorized by the Town prior to the preparation of the analysis or supplementary documents. • Cost for preparation for an EIR shall be determined by a scope of work developed by the Planning Department on a project specific case -by -case basis. The full cost for preparing an EIR shall be borne by the project applicant. • Compensation shall be provide to the consultant either by an agreed upon payment/billing schedule with specific milestones or upon the completion of all the items noted in the scope of work. Billing shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. 2. Time of Performance. The services of the Consultant are for a fixed one year period that will commence upon the execution of the contract and the Town retains the option with the mutual consent of the consultant to renew each contract annually at the end of the Town's fiscal year. Should the Town not renew a contract, the award and authorization of the contract shall automatically expire. The Town shall give the Consultant at least 30 days notice, prior to the cancellation or expiration of the contract. The individual time of performance schedule for each project referred to the Consultant is required to be performed as outlined in the scope of work section of this contract. 3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to the Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for the Consultant to practice its profession. Consultant represents and warrants to Town that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos and shall be able to provide proof of insurance upon request. Revised: July 31, 1998 C:\_ECQ01_ENVERMENVCON2.CON Page 3 of 8 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 10. Jndependent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing. 11. Conflict of Interest. Consultant understands that its professional responsibilities is solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 12. Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. Revised: July 31, 1998 C:1_ECQO1_ENVIROIENVCON2.CON Page 5 of 8 RESOLUTION 1998-135 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS ESTABLISHING AN APPROVED ENVIRONMENTAL IMPACT REPORT CONSULTANTS LIST RESOLVED, that due to the uniqueness and special characteristics of environmental consulting in that qualifications, experience and expert knowledge of the California Environmental Quality Act need to be verified, it would be advantageous to establish a list of qualified environmental consulting firms that are capable of preparing Environmental Impact Reports for projects within the Sphere of Influence Boundaries. RESOLVED, by the Town Council that the Planning Director is authorized to compile a list of Town approved environmental consulting firms for the preparation of Environmental Impact Reports, and that the Planning Director is empowered to periodically update this list as needed. RESOLVED, by the Town Council that the TOWN OF LOS GATOS shall use this prepared list in the solicitation of Request for Proposal (RFP's) for the preparation of Environmental Impact Reports that are not prepared by the Towns Primary or Alternate Environmental Consultants. N:\DEV\RESOS\EIR-LST.RES PASSED AND ADOPTED at a regular meeting of the Town Council held on the 3rd day of August, 1998, by the following vote: COUNCIL MEMBERS: AYES: Randy Attaway, Steven Blanton, Jan Hutchins, Mayor Linda Lubeck NAYS: None ABSENT: None ABSTAIN: Joanne Benjamin SIGNED: /s/ Linda Lubeck MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: /s/ Marian V. Cosgrove CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA N:1DEV 1RESOSIEIR-LST. RES Town Council Minutes August 3, 1998 Redevelopment Agency Los Gatos, California FIRE MARSHAL/INCREASED FEES/WEED ABATEMENT/RESOLUTION 1998-133 (12.28) Motion by Mrs. Benjamin, seconded by Mrs. Lubeck, that Council adopt Resolution 1998-133 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE FOURTH AMENDMENT TO AGREEMENT WITH THE SANTA CLARA COUNTY FIRE MARSHAL INCREASING FEES FOR THE ABATEMENT OF WEEDS, Carried unanimously. ENVIRONMENTAL REVIEW SERVICES/AGREEMENTS/RESOLUTION 1998-134 (21A.46) Motion by Mr. Attaway, seconded by Mr. Hutchins, that Council adopt Resolution 1998-134 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO ENTER INTO AGREEMENTS FOR ENVIRONMENTAL REVIEW SERVICES. Carried by a vote of 4 ayes. Mrs. Benjamin abstained. ENVIRONMENTAL IMPACT REPORT CONSULTANTS LIST/RESOLUTION 1998-135 (21B.46) Motion by Mr. Attaway, seconded by Mr. Hutchins, that Council adopt Resolution 1998-135 entitled, RESOLUTION OF THE TOWN OF LOS GATOS ESTABLISHING AN APPROVED ENVIRONMENTAL IMPACT REPORT CONSULTANTS LIST. Carried by a vote of 4 ayes. Mrs. Benjamin abstained. LEAGUE OF CALIFORNIA CITIES ANNUAL CONFERENCE/VOTING DELEGATE (31.10) Motion by Mr. Attaway, seconded by Mrs. Benjamin, that Mayor Lubeck and Mrs. Benjamin would act as voting delegates at the League of California Cities Annual Conference in Long Beach, October 2-4, 1998 as one or the other is able to attend the meetings. Carried unanimously. COUNCIL COMMITTEE REPORTS There were no reports given this evening. ADJOURNMENT Mayor Lubeck adjourned this evening's meeting at 9:43 P.M. TC: D 10: MM080398 ATTEST: Marian V. Cosgrove Town Clerk 8