14 Staff Report.DKS First Amendment
PREPARED BY: Nicolle Burnham
Parks and Public Works Director
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 04/16/2024
DATE: April 12, 2024
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to Execute the First Amendment to the
Contract with DKS Associates to Modify the Scope of Services and Increase
Compensation from $160,505 to $166,647
RECOMMENDATION:
Authorize the Town Manager to execute the first amendment to the contract with DKS
Associates to modify the scope of services and increase compensation from $160,505 to
$166,647.
BACKGROUND:
At its meeting of April 2, 2024 (Item 17), the Town Council directed to staff to evaluate in more
detail certain options related to modifying the Transportation Impact Fee. In discussing the
item, Councilmembers requested that staff return with two to three options and possibly a
recommendation.
DISCUSSION:
DKS Associates was contracted by the Town of Los Gatos to conduct the Nexus Study and
recommend a Transportation Impact Fee. The April direction provided by Town Council is
outside the scope of the original agreement. Attachment 1 is a first amendment to the
agreement, outlining the scope of additional analysis directed by Town Council and the
associated fee increase.
PAGE 2 OF 3 SUBJECT: First Amendment to Agreement with DKS Associates DATE: April 12, 2024
CONCLUSION:
If approved, this action would enable the requested analysis to proceed in a timely manner and
facilitate future Council discussion and action regarding the Transportation Impact Fee.
COORDINATION:
This memorandum was coordinated with the Town Attorney’s Office, outside legal counsel, the
Town Manager’s Office, and the Finance Director.
FISCAL IMPACT:
The original agreement with DKS was for services billed at hourly rates based on actual hours
worked. The $160,505 of the original agreement was not expended so the proposed
amendment reflects the net change in compensation required. There are sufficient funds in the
program budget to cover the additional request.
Notes:
1. Original agreement amount is $160,505; with $12,298 remaining.
2. New services are valued at $18,440 for new net funding on $6,142.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Budget Costs
GFAR 250,000$
Total Budget 250,000$
Costs
Consultant Services Agreement with DTA 8,800$
Consultant Agreement with DKS Associates1 160,505$
First Amendment to Consultant Agreement with DKS
Associates (Requested with this Staff Report)2 6,142$
Staff Costs 14,030$
Total Costs 189,477$
Available Balance 60,523$
VMT Mitigation Program
CIP No. 812-0133
PAGE 3 OF 3 SUBJECT: First Amendment to Agreement with DKS Associates DATE: April 12, 2024
Attachment:
1. First Amendment with Exhibit A – Original Agreement for Consultant Services with DKS
Associates and Exhibit B – Scope of Services for First Amendment
Page 1 of 2
DKS Associates – First Amendment ATTACHMENT 1
AMENDMENT TO AGREEMENT
This AMENDMENT TO AGREEMENT is dated for identification this 17th day of April 2024 and amends that certain (AGREEMENT DESCRIPTION) dated March 1st, 2022 made by and between the Town of Los Gatos, ("Town,") and the DKS Associates (“Consultant”) identified as an S Corporation and whose address is 1970 Broadway, Suite 740 Oakland, CA 94612.
RECITALS
A. Town and Consultant entered into a Consulting Agreement on April 17, 2022,
(“Agreement”), a copy of which is attached hereto and incorporated by reference as
Exhibit A to this Amendment.
B. Town desires to amend the Agreement to complete additional analysis as defined in
Exhibit B to this Amendment.
AMENDMENT 1. Section 2.1 Scope of Services is amended to read as follows: Consultant shall provide services as described in that certain Proposal sent to the
Town on April 12, 2024, which is hereby incorporated by reference and attached as Exhibit B. 2. Section 2.6 Compensation is amended to read as follows: Additional compensation for Consultant’s professional services shall be increased by $6,142 for a total agreement amount not to exceed $166,647 inclusive of all
costs. Payment shall be based upon Town approval of each task based on Exhibit B. 3. Section 3.1 Minimum Scope of Insurance is amended to read as follows: Service Provider 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 two million dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage.
4. Section 4.6 Notices is amended to change the Consultant address as follows:
DKS Associates 1050 SW 6th Ave, Suite 600
Portland, OR 97204
5. All other items and conditions of the Agreement remain in full force and effect.
Page 2 of 2
DKS Associates – First Amendment ATTACHMENT 1
IN WITNESS WHEREOF, the Town and Consultant have executed this Amendment.
Town of Los Gatos: Approved as to Consent:
_______________________________ ______________________________
Laurel Prevetti, Town Manager Carl Springer, Principal DKS
Department Approval:
_______________________________________
Nicolle Burnham
Director of Parks and Public Works
Approved as to Form: Attest:
______________________________ ______________________________
Gabrielle Whelan, Town Attorney Wendy Wood, CMC, Town Clerk
Agreement for Consultant Services
DKS Associates
Page 1 of 7
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is dated for identification this 1st day March 2022, and is made by and between
TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and DKS Associates
(“Consultant”), whose address is 1970 Broadway, Suite 740 | Oakland, CA 94612. This Agreement
is made with reference to the following facts.
I.RECITALS
1.1 The Town desires to engage Consultant to provide services to prepare a Transportation
Impact Fee Study to develop a Transportation Impact Fee Program.
1.2 The Consultant represents and affirms that it is willing to perform the desired work
pursuant to this Agreement.
1.3 Consultant warrants it possesses the distinct professional skills, qualifications, experience,
and resources necessary to timely perform the services described in this Agreement.
Consultant acknowledges Town has relied upon these warranties to retain Consultant.
II.AGREEMENTS
2.1 Scope of Services. Consultant shall provide services as described in that certain proposal
sent to the Town on March 1, 2022, which is hereby incorporated by reference and
attached as Exhibit A.
2.2 Term and Time of Performance. This contract will remain in effect upon execution to
February 28, 2025. Consultant shall perform the services described in this agreement as
described in Exhibit A.
2.3 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 Town that it has all licenses, permits, qualifications and
approvals of whatsoever nature 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.
2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons
necessary to perform the services under this Agreement.
2.5 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
DocuSign Envelope ID: 141B2DFB-3DFC-4592-99ED-58DA04D3F5DB
EXHIBIT A
Agreement for Consultant Services
DKS Associates
Page 2 of 7
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.
2.6 Compensation. Compensation for Consultant's professional services shall not exceed
$160,505, inclusive of all costs. Payment shall be based upon Town approval of each task.
2.7 Billing. Billing shall be monthly by invoice within thirty (30) days of the rendering of the
service and 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.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall be
addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031-0655
2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not
less than three 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.
2.9 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 written consent of the Town.
2.10 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
DocuSign Envelope ID: 141B2DFB-3DFC-4592-99ED-58DA04D3F5DB
Agreement for Consultant Services
DKS Associates
Page 3 of 7
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.
2.11 Conflict of Interest. Consultant understands that its professional responsibilities are 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.
2.12 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.
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. 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
DocuSign Envelope ID: 141B2DFB-3DFC-4592-99ED-58DA04D3F5DB
Agreement for Consultant Services
DKS Associates
Page 4 of 7
certificates and endorsements are to be received and approved by the
Town before work commences.
iv. Consultant agrees to have and maintain, for the duration of the contract,
professional liability insurance in amounts not less than $1,000,000 which is
sufficient to insure Consultant for professional errors or omissions in the
performance of the particular scope of work under this agreement.
General Liability:
i. 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-insurances 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.
3.2 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.
3.3 Workers’ Compensation. 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.
DocuSign Envelope ID: 141B2DFB-3DFC-4592-99ED-58DA04D3F5DB
Agreement for Consultant Services
DKS Associates
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3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify 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 out of 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 subconsultant.
IV. GENERAL TERMS
4.1 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.
4.2 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 Court of the County of Santa Clara.
4.3 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 days (15) 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, 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.
4.4 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.
4.5 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.
4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if
mailed postage prepaid, and addressed to:
Town of Los Gatos
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
DKS Associates
720 SW Washington St Suite #500
Portland, OR 97205
DocuSign Envelope ID: 141B2DFB-3DFC-4592-99ED-58DA04D3F5DB
Agreement for Consultant Services
DKS Associates
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or personally delivered to Consultant to such address or such other address as Consultant
designates in writing to Town.
4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the
terms and conditions of this Agreement in respect of the Products or Services and any
attachments to this Agreement, then the terms and conditions of this Agreement shall
prevail over attachments or other writings.
4.8 Entire Agreement. This Agreement, including all Exhibits, 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.
DocuSign Envelope ID: 141B2DFB-3DFC-4592-99ED-58DA04D3F5DB
Agreement for Consultant Services
DKS Associates
Page 7 of 7
IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement.
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Timm Borden
Interim Director Parks and Public Works
DKS Associates
Carl Springer, Principal
Approved as to Form:
Robert Schultz, Interim Town Attorney
Attest:
Shelley Neis, MMC, CPMC, Town Clerk
DocuSign Envelope ID: 141B2DFB-3DFC-4592-99ED-58DA04D3F5DB
4/11/20224/11/2022
4/16/2022
4/17/2022
4/18/2022
MEMORANDUM
DATE: April 11, 2024
TO: Nicolle Burnham| Town of Los Gatos
FROM: Erin Vaca | DKS Associates
SUBJECT: Scope and Budget Amendment for Los Gatos TIF Update Project #22046-000
INTRODUCTION
This memorandum summarizes the proposed scope and budget amendment to complete the
update of the Los Gatos Transportation Impact Fee (TIF). DKS previously submitted a nexus study
which was accepted by Town staff and adopted by the Town Council in January 2024.
Subsequently, additional direction was received from the Town Council to significantly rework the
analysis using a different methodology.
The proposed scope and budget necessary to respond to the Council’s direction are detailed in the
following sections. The task numbers listed below correspond to the existing budget structure.
SCOPE OF WORK
TASK 1 – PROJECT MANAGEMENT
This proposal includes up to two hours for the DKS project manager to meet with Town staff in
addition to one Town Council meeting. DKS will review the staff report and assist with presentation
materials for the Town Council meeting if required.
Deliverables: Preparation and attendance at one Council meeting, meeting materials
TASK 3 TRANSPORTATION IMPROVEMENTS PROJECT LIST
DKS will also work with staff to review the supplemental funding amounts available for each
project. DKS will also escalate project costs to 2024 dollars using the Engineering News Record
Construction Cost Index for the San Francisco Bay Area. DRAFTEXHIBIT B
LOS GATOS TIF UPDATE• SCOPE AND BUDGET AMENDMENT• APRIL 2024 2
DKS will conduct a fair share traffic analysis of the SR-17 project. The fair share traffic analysis will
apply the Santa Clara VTA travel demand model to calculate the future (year 2040) proportion of
over-capacity traffic on SR-17 that is associated with growth in Los Gatos. The resulting fair share
cost allocation factor will be applied to the full project cost.
Deliverables: Updated project list (Excel format), fair share traffic calculation summary (Excel
format)
TASK 4 FEE REVENUE ESTIMATION
The DKS team will prepare two new versions of the fee calculations:
Option 1 will apply a growth fair share percentage to total allocated project costs.
Option 2 will apply a growth fair share percentage to all allocated project costs except for the SR-
17 project. The SR-17 project costs will be allocated to the fee calculation in proportion to the
share of over-capacity traffic associated with growth in Los Gatos.
This task will also include a workshop session to brainstorm alternative methods for assessing the
“fair share” percentage. This subtask assumes a two-hour, virtual meeting to be attended by the
DKS project manager, the Urban Economics project manager, and one additional senior DKS staff.
Recommendations resulting from the workshop will be documented in a brief technical
memorandum. Any significant additional work stemming from the workshop recommendations will
be delivered under a separate contract amendment.
Deliverables: “Fair Share” Workshop and Technical Memorandum; Fee calculation workbooks (Excel
format).
TASK 6 DRAFT AND FINAL NEXUS REPORTS
DKS will confirm the recommended option for fee calculation with Town staff. The nexus report will
be updated to reflect the recommended approach. DKS will respond to a single set of comments on
the administrative draft (to Town staff) and the public draft (to Town Council) to prepare a final
nexus report.
Deliverables: administrative draft, draft, and final nexus reports.
BUDGET
The proposed budget for the additional scope is $18,440 as summarized in the attached table.
SCHEDULE
DKS will complete the analysis and public draft nexus report within six weeks of notice to proceed. DRAFT
LOS GATOS TIF UPDATE• SCOPE AND BUDGET AMENDMENT• APRIL 2024 3
TABLE 1: BUDGET ESTIMATE
ADDITIONAL BUDGET BY TASK DRAFT
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