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Item 23 Staff Report Adopt Resolution Authorizing Town Manager to Sign Agreements for Environmental Initial Study Consultant Services with Environmental Science Associates, LSA Associates, and Geier and Geier ConsultingTOWN OF LOS GATOS COUNCIL AGENDA REPORT DATE: July 28, 1995 TO: MAYOR AND TOWN COUNCIL FROM: TOWN MANAGER SUBJECT: COUNCIL AGENDA DATE: 8/7/95 ITEM NO. 3 ADOPT RESOLUTION AUTHORIZING TOWN MANAGER TO SIGN AGREEMENTS FOR ENVIRONMENTAL INITIAL STUDY CONSULTANT SERVICES WITH ENVIRONMENTAL SCIENCE ASSOCIATES, LSA ASSOCIATES, AND GEIER AND GEIER CONSULTING RECOMMENDATION: Adopt resolution authorizing Town Manager to sign agreements for environmental initial study consultant services with Environmental Science Associates, LSA Associates, and Geier and Geier Consulting. DISCUSSION: The Town maintains a current list of pre -qualified consultants to prepare environmental documents and updates that list every few years as required to ensure quality and timely studies. The list is divided into two categories of firms, those who are approved for the preparation of environmental impact reports, and those who are also approved to prepare initial environmental studies. All environmental documents are prepared by the consultant under agreement with the Town. This process of environmental documents being prepared by independent third parties has worked well since its inception. Each of the three consultant firms qualified to prepare initial environmental studies signs an agreement to provide these services for one year. The current consultant list has been in effect for only four years. Since there has been so little development activity requiring environmental consultant services during this time, the recommendation is to retain the existing list for one more year. (Continued on Page 2) PREPARED BY: LEE E. BOWMAN C PLANNING DIRECTOR LEB:DRR:cl 7/28/95 4:33 pm N:IDEVICNCLRPTS\CONSULT.ENV Attachments: See Page 2 for list of Attachments Reviewed by: Attorney _ Clerk .RN_Frinance Treasurer COUNCIL ACTION/ACTION DIRECTED TO: PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: AGREEMENTS FOR ENVIRONMENTAL INITIAL STUDY CONSULTANT SERVICES July 28, 1995 Attachments 1 and 2 are copies of the current agreements. Included in Agreement #1 is a requirement for Errors and Omissions insurance for the two large firms, Environmental Science Associates, Inc., and LSA Associates, Inc. The agreement with Geier and Geier attached as Agreement #2 does not include the requirement for Errors and Omissions insurance. However, Geier and Geier Consulting, Inc. has done an outstanding job providing the Town with environmental review services. Because Geier and Geier is a small planning firm, Errors and Omissions coverage cannot be obtained. Staff has considerable confidence in Geier and Geier and feels strongly that the firm should continue to be retained even though Errors and Omissions coverage cannot be secured. The Town Attorney concurs. As before, all costs associated with the preparation of environmental documents by the consultants for development projects are paid by the applicants at the time of the development application. ENVIRONMENTAL ASSESSMENT: Not a project as defined under CEQA. FISCAL IMPACT: All costs of preparing initial studies for development projects are borne by the project applicant. ATTACHMENTS: 1. Draft Resolution 2. Draft Agreement No. 1. 3. Draft Agreement No 2. 4. Existing approved consultant list. RESOLUTION 1995- RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE EXECUTION OF AGREEMENTS FOR ENVIRONMENTAL INITIAL STUDIES 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 bid. RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter into agreement for environmental initial studies and the preparation of Negative Declarations with Environmental Science Associates, Inc., and LSA Associates, Inc. This agreement is titled Agreement No. 1. RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter into agreement for environmental initial studies and the preparation of Negative Declarations with Geier and Geier Consulting, Inc. This agreement is titles Agreement No. 2. FURTHER RESOLVED, by the Town Council that the Town Manager is authorized and directed to execute the attached agreements for environmental initial studies and the preparation of Negative Declarations in the name and in behalf of the TOWN OF LOS GATOS. a: \resos\environ. agr ATTACHMENT 1 PASSED AND ADOPTED at a regular meeting of the Town Council held on the day of , 1995, by the following vote: COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA a: \resos\environ. agr AGREEMENT NO 2. FOR INITIAL STUDIES 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 , engaged in providing consulting services herein called the "Consultant". RECITALS A. The Town is considering undertaking activities pursuant to the provisions in Title 14, California Administrative Code, Section 15000 et seq (Guidelines for Implementation of the California Environmental Quality Act) and California Public Resources Code Section 21000 et seq. (California Environmental Quality Act). B. The Town desires to engage a Initial Studies Consultant to provide consulting services in conjunction with determinations on the environmental effects of proposed projects or developments, because of Consultant'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: 1. Scope of Services. The Consultant shall provide the following services: A. During the term of the contract the Consultant shall prepare initial studies, negative declarations and mitigated negative declarations as defined in Title 14, California Administrative Code, Section 15000 et seq. B. There is no promise of any maximum or minimum number of initial study assignments. During the term of the Agreement, The consultant will prepare the initial studies, negative declarations and mitigated negative declarations as the Town requests. Further, the Consultant knows the Town may assign some or all initial studies to other Consultants. C. Projects will be assigned by the Town Planning Director (hereinafter "Planning Director") and shall comply with Title 14, California Administrative Code, Section 15000 et seq. and will be due within thirty (30) days of assignment. Page 1 of 8 D. If the Consultant cannot meet the project schedule or deadline he/she shall inform the Planning Director before accepting the assignment. If the Consultant delays the assignment in an unreasonable manner or causes a violation of any time requirement of any statute or regulation, the Town will notify the Consultant in writing and reassign the assignment or gibe written notice of termination pursuant to Item No. 5 of this Agreement. E. The Town will prepare an "Authorization to Proceed" for each assignment. The document shall be signed by the Planning Director or his designee and the Consultant. This document will provide information regarding the "specific project assigned." F. The Consultant shall meet and consult with members of the Town staff, visit the project site, obtain information from the applicant and refer to all other reasonable available resources for the initial studies and negative declaration. In addition, the Consultant will attend one (1) daytime Development Review Committee (DRC) meeting pertaining to the specific project. G. The Consultant shall submit eight (8) draft copies of a preliminary initial study and negative declaration draft to the Planning Director. The Planning Director, or his designee, will review the preliminary draft within fourteen (14) calendar days of receipt. The Consultant will then be advised by letter of any corrections or clarifications needed to complete the studies. H. The Consultant shall submit twenty-five (25) final copies of the following documents as minimum requirements of this Agreement (said documents to be on 8-1/2" x 11" paper, three -hole punched and clipped together in separate packets): i. Completed initial study; ii. Either a recommended negative declaration or a list of subjects to which special attention should be given in either a mitigated negative declaration or in a draft environmental impact report; iii. If applicable, a monitoring program in a Town approved format; and iv. Any other supporting data used in the preparation of the above documents or other recommendation for review. 1. All final written documents and materials, as listed above, shall be submitted to the Office of the Planning Director by the Consultant within one week of receiving the Town's Page 2 of 8 comments on the preliminary draft (as described in Item No. F). Only original photographs need to be submitted. 2. Time of Performance. The services of the Consultant are to commence upon the execution of this Agreement and Consultant will accept assignments made through June 30, 1996 and shall be undertaken and completed in such sequence as to assure their expeditious completion in light of the purposes of this Agreement and until written termination by one or both parties, or completion of services as set forth in Agreement. 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 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 Article 14 of the Code of the Town of Los Gatos. 4. Confidential Information. All data, documents, discussion or other information developed or received by or for the Consultant in performance of this Agreement are confidential and will no be disclosed to any person except as authorized by the Town Manager, Town Planning Director or their designee or as required by law. 5. Town Property. All materials and compilations of information produced by the Consultant specifically to perform this Agreement are and remain property of the Town regardless of whether such materials and compilations are required to be, or are, actually delivered to the Town. 6. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 7. Compensation. The compensation to be paid to the Initial Studies Consultant including both payment for professional services and any reimbursable expenses shall be a maximum of Fourteen Hundred and Sixteen Dollars (1,416) for each initial study. Payment shall be made at the Town's next issue of warrants following completion and delivery of the study and receipt of billing. Before accepting the assignment, the Consultant will provide the Planning Director a written estimate and cost breakdown of the amount of any anticipated extraordinary work and the Planning Director may either assign the work to another consultant or, under the direction of the Town Manager, negotiate a higher fee. If after commencement of work, the Consultant determines that additional services may be required to complete the assignment, the Consultant shall submit a written request to perform additional services with a concise breakdown of additional costs. The Planning Page 3 of 8 Director will review the request and vs..— and costs or advise the Consultant tothe compensation amounts be more and the subsequent approval by the t Consultant agrees to testify in any liti be performed under this agreement. expenses in preparing for, traveling hourly rates of compensation, unless on allegations of Consultant's neglig 8. Independent Contractor. It is unders work and services agreed to be perfo. and not an agent or employee of the T' obtain any rights to retirement be: employee(s). With prior written cony- •�, under this Agreement by subcontracts performance or assign or transfer int - - s 9. Conflict of Interest. The Consultant mu interest when the Consultant: (1) has dr the preceding year, or is then doing or r• WEI 1 when the Consultant has done, is doin or (2) when the Consultant has done, is other than the Town concerning the pr 8: (1) a sole proprietorship or business to be the same as the Consultant, and a_ to an applicant is considered to be the s work for the Town itself is not grounds z to be performed by the Town. Consultant understands that its profe: Consultant has and shall not obtain an -ors Consultant has no business holdings or or management of the Town or its reps or agreements. In addition, Consults acquire any direct or indirect interest Agreement, and it shall immediately discover it has done so. Consultant silk ensure that it does not employ a persos Agreement. If after employment of a with a direct or indirect interest that we Consultant shall promptly sever this e ss Director will review the request and will either provide approval for the additional services and costs or advise the Consultant to continue without the additional work. In no case will the compensation amounts be more than those indicated without prior written notification and the subsequent approval by the Town. 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. 8. 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. 9. Conflict of Interest. The Consultant must decline assignments on the grounds of conflict of interest when the Consultant: (1) has done work for the applicant for project approval within the preceding year, or is then doing or reasonable expects to do work for the applicant, or (2) when the Consultant has done, is doing or reasonable expects to do work for the applicant, or (2) when the Consultant has done, is doing or reasonable expects to do work for someone other than the Town concerning the project to be studied. For the purposes of this Item No. 8: (1) a sole proprietorship or business organization related to the Consultant is considered to be the same as the Consultant, and a sole proprietorship or business organization related to an applicant is considered to be the same as the applicant; and (2) past, present or future work for the Town itself is not grounds for disqualification when the project is one proposed to be performed by the Town. 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. 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 sever this employment relationship. Page 4 of 8 10. 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. 11. Project Manager. At the beginning of each study, the Consultant shall designate a Project Manager responsible for the work on the study. 12. 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. 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 Page 5 of 8 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. 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 subconsultant. 15. Waiver. No failure on the part of either parry 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 either the County of Santa Clara or the County of San Mateo. Page 6 of 8 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 (15) 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. 18. 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. 19. Execution: This Agreement may be executed in several counterparts each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy, here of shall have been signed by both parties hereto. In proving this agreement, it shall not be necessry to produce or account for more than one such counterpart. 20. 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 Planning Department P.O. Box 949 Los Gatos, California 95031 or personally delivered to Consultant to such address or such other address as Town designates in writing to Consultant. Page 7 of 8 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 ATTEST: Clerk of the Town of Los Gatos, Approved as to Form: Los Gatos, California Marian V. Cosgrove, Town Clerk Larry E. Anderson, Town Attorney a:\misc\agremt.2 Page 8 of 8 AGREEMENT NO 1. FOR INITIAL STUDIES 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 engaged in providing consulting services herein called the "Consultant". RECITALS A. The Town is considering undertaking activities pursuant to the provisions in Title 14, California Administrative Code, Section 15000 et seq (Guidelines for Implementation of the California Environmental Quality Act) and California Public Resources Code Section 21000 et seq. (California Environmental Quality Act). B. The Town desires to engage a Initial Studies Consultant to provide consulting services in conjunction with determinations on the environmental effects of proposed projects or developments, because of Consultant'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: 1. Scope of Services. The Consultant shall provide the following services: A. During the term of the contract the Consultant shall prepare initial studies, negative declarations and mitigated negative declarations as defined in Title 14, California Administrative Code, Section 15000 et seq. B. There is no promise of any maximum or minimum number of initial study assignments. During the term of the Agreement, The consultant will prepare the initial studies, negative declarations and mitigated negative declarations as the Town requests. Further, the Consultant knows the Town may assign some or all initial studies to other Consultants. C. Projects will be assigned by the Town Planning Director (hereinafter "Planning Director") and shall comply with Title 14, California Administrative Code, Section 15000 et seq. and will be due within thirty (30) days of assignment. Page 1 of 8 D. If the Consultant cannot meet the project schedule or deadline he/she shall inform the Planning Director before accepting the assignment. If the Consultant delays the assignment in an unreasonable manner or causes a violation of any time requirement of any statute or regulation, the Town will notify the Consultant in writing and reassign the assignment or gibe written notice of termination pursuant to Item No. 5 of this Agreement. E. The Town will prepare an "Authorization to Proceed" for each assignment. The document shall be signed by the Planning Director or his designee and the Consultant. This document will provide information regarding the "specific project assigned." F. The Consultant shall meet and consult with members of the Town staff, visit the project site, obtain information from the applicant and refer to all other reasonable available resources for the initial studies and negative declaration. In addition, the Consultant will attend one (1) daytime Development Review Committee (DRC) meeting pertaining to the specific project. G. The Consultant shall submit eight (8) draft copies of a preliminary initial study and negative declaration draft to the Planning Director. The Planning Director, or his designee, will review the preliminary draft within fourteen (14) calendar days of receipt. The Consultant will then be advised by letter of any corrections or clarifications needed to complete the studies. H. The Consultant shall submit twenty-five (25) final copies of the following documents as minimum requirements of this Agreement (said documents to be on 8-1/2" x 11" paper, three -hole punched and clipped together in separate packets): i. Completed initial study; ii. Either a recommended negative declaration or a list of subjects to which special attention should be given in either a mitigated negative declaration or in a draft environmental impact report; iii. If applicable, a monitoring program in a Town approved format; and iv. Any other supporting data used in the preparation of the above documents or other recommendation for review. 1. All final written documents and materials, as listed above, shall be submitted to the Office of the Planning Director by the Consultant within one week of receiving the Town's comments on the preliminary draft (as described in Item No. F). Only original photographs need to be submitted. Page 2 of 8 2. Time of Performance. The services of the Consultant are to commence upon the execution of this Agreement and Consultant will accept assignments made through June 30, 1996 and shall be undertaken and completed in such sequence as to assure their expeditious completion in light of the purposes of this Agreement and until written termination by one or both parties, or completion of services as set forth in Agreement. 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 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 Article 14 of the Code of the Town of Los Gatos. 4. Confidential Information. All data, documents, discussion or other information developed or received by or for the Consultant in performance of this Agreement are confidential and will no be disclosed to any person except as authorized by the Town Manager, Town Planning Director or their designee or as required by law. 5. Town Property. All materials and compilations of information produced by the Consultant specifically to perform this Agreement are and remain property of the Town regardless of whether such materials and compilations are required to be, or are, actually delivered to the Town. 6. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 7 Compensation. The compensation to be paid to the Initial Studies Consultant including both payment for professional services and any reimbursable expenses shall be a maximum of Fourteen Hundred and Sixteen Dollars (1,416) for each initial study. Payment shall be made at the Town's next issue of warrants following completion and delivery of the study and receipt of billing. Before accepting the assignment, the Consultant will provide the Planning Director a written estimate and cost breakdown of the amount of any anticipated extraordinary work and the Planning Director may either assign the work to another consultant or, under the direction of the Town Manager, negotiate a higher fee. If after commencement of work, the Consultant determines that additional services may be required to complete the assignment, the Consultant shall submit a written request to perform additional services with a concise breakdown of additional costs. The Planning Director will review the request and will either provide approval for the additional services and costs or advise the Consultant to continue without the additional work. In no case will the compensation amounts be more than those indicated without prior written notification Page 3 of 8 and the subsequent approval by the Town. 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. 8. 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. 9. Conflict of Interest. The Consultant must decline assignments on the grounds of conflict of interest when the Consultant: (1) has done work for the applicant for project approval within the preceding year, or is then doing or reasonable expects to do work for the applicant, or (2) when the Consultant has done, is doing or reasonable expects to do work for the applicant, or (2) when the Consultant has done, is doing or reasonable expects to do work for someone other than the Town concerning the project to be studied. For the purposes of this Item No. 8: (1) a sole proprietorship or business organization related to the Consultant is considered to be the same as the Consultant, and a sole proprietorship or business organization related to an applicant is considered to be the same as the applicant; and (2) past, present or future work for the Town itself is not grounds for disqualification when the project is one proposed to be performed by the Town. 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. 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 sever this employment relationship. 10. 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 Page 4 of 8 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. 11. Project Manager. At the beginning of each study, the Consultant shall designate a Project Manager responsible for the work on the study. 12. 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. 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. 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. 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. Page 5 of 8 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. 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 subconsultant. 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 either the County of Santa Clara or the County of San Mateo. Page 6 of 8 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 (15) 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. 18. 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. 19. Execution: This Agreement may be executed in several counterparts each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy, here of shall have been signed by both parties hereto. In proving this agreement, it shall not be necessry to produce or account for more than one such counterpart. 20. 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 Planning Department P.O. Box 949 Los Gatos, California 95031 or personally delivered to Consultant to such address or such other address as Town designates in writing to Consultant. Page 7 of 8 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 ATTEST: Clerk of the Town of Los Gatos, Approved as to Form: Los Gatos, California Marian V. Cosgrove, Town Clerk Larry E. Anderson, Town Attorney a: 1 mi sc 1 agremt. 1 Page 8 of 8 REVISED April 25, 1995 LIST OF TOWN APPROVED ENVIRONMENTAL ASSESSMENT CONSULTANTS STA, Inc. ** 582 Market Street, Suite 612 San Francisco, CA 94104 (415) 296-7760 EIP Associates 150 Spear Street, Suite 1500 San Francisco, CA 94105 Environmental Science Associates, Inc. * 301 Brannon Street, Suite 200 San Francisco, CA 94107-1811 (415) 896-5900 Kreines and Kreines 58 Paseo Mirasol Tiburon, CA 94920 (415) 435-9214 LSA Associates, Inc. 157 Park Place Pt. Richmond, CA 94801 (510) 236-6810 Mindigo & Associates " 1984 The Alameda San Jose, CA 95126 Planning Analysis and Development 50 Francisco Street, Suite 140 San Francisco, CA 94133 Duncan and Jones 2161 Shattuck Avenue Berkeley, CA 94704 Geier & Geier Consulting, Inc. 2738 Webster Street Berkeley, CA 94705 (510) 644-2535 On Initial Study Consultant List Mailing Address: P. O. Box 5054 Berkeley, CA 94704-5054 On Alternate Initial Study Consultant List n:\dev.m arie1m isckonsu lt. Ist ATTACHMENT 4 INTERNAL TRACKING COMPLETE AND INITIAL EACH STEP ACTION j AGENDA ITEM: 3 #1, k M.0(' /0 / 1aa RESOLUTION/ORDINANCE NUMBER: DESCRIPTION: DATE .BY LIST IN BOOK 4-/, &Ole iGl, 96--- Ia. l 11/1P ON DISC? MARIAN'S FORM SENT TO DEPT. SA\C1-2' PUBLISH IF REQUIRED - Indicate date of ORDINANCES ONLY Publication. WHEN SIGNATURE AND /s/ COPY (1 EACH) returned, LIST ON SIGNATURE TRACKING & SEND TO MAYOR <Liq 11,*, SEND COPIES TO DEPT. DISTRIBUTION LIST Dist. Report Date: NO.of COPIES: TYPE ENVELOPES AND MAIL SIGN BY CLERK/SEAL ENTER INTO ECM ORDINANCE/RESOLUTION FILE PUT OUR /s/ COPY IN BASKET. c F :�.,. jiL .; FILE IN VAULT SEND FOR CODIFICATION IF ORDINANCE ! :Ik: d8: \other\ordres2 n f y OFFICE OF THE TOWN CLERK ORDINANCES & RESOLUTIONS ORIGINATING DEPT: COUNCIL AGENDA DATE: COUNCIL AGENDA ITEM: SUBJECT: PLANNING 08/07/95 23 EIR INITIAL STUDIES RESOLUTION Number: 1995- JOIP Number: Date of Adopt: 08/07/95 Date of Intro: COUNCIL ACTION: AYES: NAYS: ABSENT: ABSTAIN: Date of Adopt: ZONE CHANGE: ALL COUNCIL MEMBERS NAMES: Randy Attaway, Joanne Benjamin, Steven Blanton, Linda Lubeck, Mayor(or Chairman) PATRICK O'LAUGHLIN ORDINANCE ORDINANCES and RESOLUTIONS MUST BE RETURNED TO TOWN CLERK BY WEDNESDAY AT 12 NOON. ORDINANCES MUST BE READY FOR IMMEDIATE PUBLICATION RESOLUTION 1995-106 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE EXECUTION OF AGREEMENTS FOR ENVIRONMENTAL INITIAL STUDIES 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 bid. RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter into agreement for environmental initial studies and the preparation of Negative Declarations with Environmental Science Associates, Inc., and LSA Associates, Inc. This agreement is titled Agreement No. 1. RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter into agreement for environmental initial studies and the preparation of Negative Declarations with Geier and Ceier Consulting, Inc. This agreement is titles Agreement No. 2. FURTHER RESOLVED, by the Town Council that the Town Manager is authorized and directed to execute the attached agreements for environmental initial studies and the preparation of Negative Declarations in the name and in behalf of the TOWN OF LOS GATOS. n: \dev\resos\environ. agr PASSED AND ADOPTED at a regular meeting of the Town Council held on the 7th day of August, 1995, by the following vote: COUNCIL MEMBERS: AYES: Randy Attaway, Joanne Benjamin, Steven Blanton, Linda Lubeck, Mayor Patrick O'Laughlin NAYS: None ABSENT: None ABSTAIN: None SIGNED: /s/ Patrick O'Laughlin 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\environ.agr August 7, 1995 Los Gatos, California DEVELOPMENT APPLICATIONS/INTERIM POLICIES/LOS GATOS BOULEVARD SPENCER AVE TO ROUTE 85/RESOLUTION 1995-105 (22.47) Motion by Mr. Blanton, seconded by Mrs. Benjamin, that Council adopt Resolution 1995-105 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AMENDING THE INTERIM POLICIES FOR DEVELOPMENT APPLICATION ALONG LOS GATOS BOULEVARD FROM SPENCER AVENUE TO ROUTE 85. Carried unanimously. ENVIRONMENTAL INITIAL STUDIES/CONSULTANT SERVICES/RESO 1995-106 (23.47) Motion by Mr. Blanton, seconded by Mrs. Benjamin, that Council adopt Resolution 1995-106 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE EXECUTION OF AGREEMENTS FOR ENVIRONMENTAL INITIAL STUDIES. Carried unanimously. 9423 PROJECT/TREE PRUNING/DAVEY TREE/RESOLUTION 1995-107 (24.35) Motion by Mr. Blanton, seconded by Mrs. Benjamin, that Council adopt Resolution 1995-107 entitled, RESOLUTION OF THE TOWN OF LOS GATOS ACCEPTING WORK OF DAVEY TREE EXPERT COMPANY ON PROJECT 9423 - TREE PRUNING - AND AUTHORIZING THE TOWN MANAGER TO EXECUTE CERTIFICATE OF ACCEPTANCE AND NOTICE OF COMPLETION FOR RECORDING BY TOWN CLERK. Carried unanimously. VERBAL COMMUNICATIONS (XX.47/49) Development of Black Road: Jo Bartlett, 166 Oak Hill Way, spoke of proposed development in the hills off Lexington. She specifically noted property being developed by Pete Denevi for an area golf course, and spoke of environmental issues. This item has been referred from the County and is on this evening's agenda as Item 4 which will be discussed later in the meeting. FOURTH OF JULY/CELEBRATION COMMITTEE (32.23) Don Callahan, 209 Highland Terrace, spoke of a community family event to be held at Oak Meadow Park celebrating the 4th of July. He volunteered the Los Gatos Community Foundation to coordinate the event. Council consensus that the Community Foundation take 60 days to prepare a report for Council; include the parameters of such an event; establish the amount of community and business support; include other interested community groups; work in conjunction with the wind symphony event at the high school; that Mr. Blanton represent Council on the committee to formulate plans; that the Council include this item on its Agenda of October 2, 1995. HEARINGS LOS GATOS BOULEVARD 227/SIDE YARD SETBACK/APPEAL (25.09) Mayor O'Laughlin stated that this was the time and place duly noted for public hearing to consider an appeal of a Planning Commission decision to deny an appeal of a decision of the Planning Director denying a request for reduction of side yard setback from five to three feet in order to construct an accessory garage structure on property in the R-1D Zone. Minor Residential Development Application X-95-9. Property located at: 227 Los Gatos Boulevard. Property owners: Kiturah Humphrey and Henry Farhi. TC: D7: MM080795 5