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HomeMy WebLinkAboutAGMT - Environmental Impact SciencesPROFESSIONAL SERVICES AGREEMENT AMENDMENT NO. 3 Between City of Seal Beach 211 - 8th Street Seal Beach. CA 90740 Environmental Impact Sciences 26051 Via Concha Mission Viejo CA, 92691 P — 949 - 837 -1195 F — 949 - 837 -3935 This Amendment No. 2 dated September 28. 2015, amends that certain agreement ( "Agreement') between the City of Seal Beach, a California charter city ( "City ") and Environmental Impact Sciences ( "Consultant') dated February 27, 2012, as previously amended. 0 0 RECITALS WHEREAS, City and Consultant entered into the Agreement on February 27, 2012 under which Consultant has provided professional services in connection with the 1-405 Widening Environmental Impact Report/Environmental Impact Study ( "Project); WHEREAS, City and Consultant amended the Agreement on July 23, 2012 ( "Amendment No. 1 "); and WHEREAS, City and Consultant amended the Agreement on February 11, 2013, ( "Amendment No. 2 "); and WHEREAS, the parties wish to further amend the Agreement to increase Consultant's compensation by $30,000 to compensate Consultant for additional services required in connection with the Project. NOW, THEREFORE and in consideration of the foregoing and of the mutual covenants and promises herein set forth, the parties agree to amend the Agreement as follows: Section 1. Section 1.0 (Scope of Services) of the Agreement is hereby amended to read as follows: 111.0 Scope of Services 1.1. Consultant shall provide those services ( "Services ") set forth in the attached Exhibit A. 1.2. Consultant shall provide those additional services ( "Additional Services ") set forth in the attached Exhibit C. 1.3. Consultant shall provide those additional services ( "Additional Services ") set forth in the attached Exhibit E. 1.4. Consultant shall provide those additional services ( "Additional Services ") set forth in the attached Exhibit F. 1.5. Consultant shall perform all services under this Agreement, as amended, in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to the City. 1.6. In performing this Agreement, as amended, Consultant must comply with all applicable provisions of federal, state, and local law. 1.7. Consultant will not be compensated for any extra work performed not specified in Exhibits A, C, E and F unless the City authorizes such extra work in advance and in writing. The City Manager may authorize payment for such extra work • up to a cumulative maximum of $10,000. Payment for additional work in excess of $10,000 requires prior City Council authorization." Section 2. Section 2.0 (Term) of the Agreement, as previously amended by Amendment No. 1 and Amendment No. 2, is hereby further amended to read as follows: "2.0 Term 2.1 This term of this Agreement shall commence as of the Effective Date and shall continue for a term of 3 years through and including September 28, 2018, unless previously terminated as provided by this Agreement." Section 3. Section 3.0 (Compensation) of the Agreement, as previously amended by Amendment No. 1 and Amendment No. 2, is hereby further amended to read as follows: "3.0 Consultant's Compensation 3.1 City will pay Consultant in accordance with the fee schedules set forth in Exhibits A (for Services), C (for Additional Services), E (for Additional Services), and F (Additional Services). In no event will the City pay more than: • $20,000 for the Services identified in Exhibit A • $25,000 for the Additional Services identified in Exhibit C • $20,000 for the Additional Services identified in Exhibit E • $30,000 for the Additional Services identified in Exhibit F. The total amount paid to the Consultant under this Agreement, as amended, shall not exceed a cumulative total of $95,000.00, of which $75,000.00 has been paid to the Consultant by City as of the date of this Amendment No. 3 and receipt of which is acknowledged by the Consultant. 3.2 Any extra work authorized by the City pursuant to Section 1.6 will be compensated in accordance with the rate schedule set forth in Exhibit A." Section 4 Section 22.0 (Exhibits) of the Agreement is hereby amended to read as follows: "22.0 Exhibits 22.1 This Agreement includes the following exhibits: Sean Crumby, Assistant City Manager /Director of Public Works, City of Seal Beach and Environmental Impact Sciences Standard Rate Schedule (January 1, 2012)); Exhibit B (Amendment to Professional Services Agreement between City of Seal Beach and Environmental Impact Sciences. dated January 23, 2012) ( "Amendment No. 1"); 0 0 28. 2015) ( "Amendment No. 3)". Section 4. All other terms and provisions of the Agreement, as previously amended, shall have full force and effect. Section 5. The Council hereby authorizes the City Manager to execute on behalf of the City the Amendment dated September 28, 2015. Section 6. The Council hereby directs the City Clerk to attach Amendment No. 3 (Exhibit G) and Exhibit F to the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be executed and attested by their proper officers thereunto: CfTY OF SEAL BEACH 2Tina Actin City Clerk TTpL APP V D FORM: CraW. gtd6le, Attomey CONSULTANT: ENVIRONMENTAL IMP CIIEN`CES President or Vice President Vice President or Secretary ENronmental Impact 5cience5 r ±yy 26051 Via Concha i Mi66ion Viejo, California 92691.5614 P% 949.637.1195 949.837.3935 Fax August 8, 2015 Michael Ho, Assistant Director Department of Public Works City of Seal Beach 211 8th Street Seal Beach. California 90740 Change Order No. 5: 405 - Freeway Widening Project San Diego Freeway (1 -405) Improvement Project Dear Michael: L EXHIBIT F Environmental Impact Sciences (EIS) submits the following change order request under our existing professional services agreement (Resolution No. 6221), dated February 13, 2012 In response to the continuing discussions between the City of Seal Beach (City), the California Department of Transportation ( Caltrans), and the Orange County Transportation Authority (OCTA) with regards to the San Diego Freeway Improvement Project, there existing a benefit to the City and its constituents to retain those contractors that have previously participated in the preparation of formal comments submitted to Caltrans and the OCTA thereupon. EIS has worked extensive with the City's Department of Public Works (Department) in critiquing the environmental and engineering studies that have been developed by Caltrans and the OCTA and, in coordination with Department staff, developed the environmental review record which is now a substantial part of current dialogue between agencies. Since substantive environmental and engineering issues remain unresolved, the City may see a need to continue to call upon EIS and others to address those issues. Because much of the discussion between agencies is time dependent, in order to avoid potential delays in the performance of any future work, both the Department and EIS recognize a benefit in augmenting the existing contract to cover both outstanding costs and any additional work assignments that may be forthcoming. This letter serves as a change order request in the amount of thirty thousand dollars ($30,000) for any authorized serves that have been and /or which may be identified by the Department relative to the San Diego Freeway Improvement Project. Should you have any questions concerning this change order request, please feel free to contact me at (949) 837 -1195. Sincerely, � �ia'�'�✓ _ sQu. Peter Lewandowski Principal PROFESSIONAL SERVICES AGREEMENT AMENDMENT NO. 2 Between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 V Environmental Impact Sciences 26051 Via Concha Mission Viejo CA, 92691 P — 949 - 837 -1195 F — 949 - 837 -3935 This Amendment No. 2 dated February 11, 2013, amends that certain agreement ( "Agreement') between the City of Seal Beach, a California charter city ( "City ") and Environmental Impact Sciences ( "Consultant') dated February 27, 2012. RECITALS WHEREAS, City and Consultant entered into the Agreement on February 13, 2012 under which Consultant has provided professional services in connection with the 1 -405 Widening Environmental Impact Report/Environmental Impact Study ( "Project); WHEREAS, City and Consultant amended the Agreement on July 23, 2012; and WHEREAS, the parties wish to further amend the Agreement to increase Consultant's compensation by $20,000 to compensate Consultant for additional services required in connection with the Project. NOW, THEREFORE and in consideration of the foregoing and of the mutual covenants and promises herein set forth, the parties agree to amend the Agreement as follows: Section 1. Section 1.0 (Scope of Services) of the Agreement is hereby amended to read as follows: 111.0 Scope of Services 1.1. Consultant shall provide those services ( "Services ") set forth in the attached Exhibit A. 1.2. Consultant shall provide those additional services ( "Additional Services ") set forth in the attached Exhibit C. 1.3. Consultant shall provide those additional services ( "Additional Services ") set forth in the attached Exhibit E. 1.4. Consultant shall perform all services under this Agreement, as amended, in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to the City. 1.5. In performing this Agreement, as amended, Consultant must comply with all applicable provisions of federal, state, and local law. 1.6. Consultant will not be compensated for any extra work performed not specified in Exhibits A, C and E unless the City authorizes such extra work in advance and in writing. The City Manager may authorize payment for such extra work up to a cumulative maximum of $10,000. Payment for additional work in excess of $10,000 requires prior City Council authorization." Section 2. Section 2.0 (Term) of the Agreement is hereby amended to read as follows: "2.0 Term 2.1 This term of this Agreement shall commence as of the Effective Date and shall continue for a term of 3 years unless previously terminated as provided by this Agreement." Section 3. Section 3.0 (Compensation) of the Agreement is hereby amended to read as follows: "3.0 Consultant's Compensation 3.1 City will pay Consultant in accordance with the fee schedules set forth in Exhibits A (for Services), C (for Additional Services) and E (for Additional Services). In no event will the City pay more than: • $20,000 for the Services identified in Exhibit A • $25,000 for the Additional Services identified in Exhibit C $20,000 for the Additional Services identified in Exhibit E. 3.2 Any extra work authorized by the City pursuant to Section 1.6 will be compensated in accordance with the rate schedule set forth in Exhibit A." Section 4. All other terms and provisions of the Agreement, as previously amended, shall have full force and effect. Section 5. The Council hereby authorizes the City Manager to execute on behalf of the City the Amendment dated February 11, 2013. Section 6. The Council hereby directs the City Clerk to attach Amendments No. 2 (Exhibit D) and Exhibit E to the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be executed and attested by their proper officers thereunto: CITY OF SEAL BEACH Ungram, 6ty Ma ag r AT EST: Li da Devine, City Clerk APP OVED AS ORM: uinn rX Barrow, ity Attorney CO�ANT a d I C/1 A. President or Vice President Vice President or Secretary Exhibit A opErMrommmral Impact &16.nm 26051 Via Concha Mission Viejo, California 926915614 949.837.1195 949.837.3935 Fax January 26, 2012 Sean Crumby, P.E. Assistant City Manager /Director of Public Works City of Seal Beach 211 Eighth Street Seal Beach, California 90740 Proposal: CEQA/NEPA Third -Party Review California Department of Transportation (Caltrans) Orange County Transportation Authority (OCTA) San Diego Freeway (1 -405) Improvement Project Dear Mr. Crumby: Environmental Impact Sciences (EIS) has extensive experience in preparing both comprehensive, legally defensible environmental impact reports for complex public and private projects and detailed third -party peer reviews of documents prepared by other consultants. Skilled as both a practitioner and a key member of an agency's legal team, EIS is often tasked to ensure that documents prepared under the provisions of the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA) fulfill their regulatory Intent "not only to protect the environment but also to demonstrate to the public that It Is being protected" (14 CCR 15003). As a follow -up to our recent conversation, this correspondence constitutes a proposal to conduct an independent third -party review of existing and upcoming CEQA/NEPA documentation in order to assist the City of Seal Beach (City) formulate written comments on a proposed freeway widening project that may adversely impact the City, its residents, and business community. The California Department of Transportation (Caltrans) and the Orange County Transportation Authority (OCTA) are presently proposing to widen the San Diego Freeway (1 -405) between State Route 73 (SR -73) and Interstate 605 0-605). Development plans include, but are not limited to, adding two general- purpose lanes in both directions and associated but unspecified Interchange improvements (identified as "Build Alternative 24). Other options being considered by Caltrans and the OCTA Include: (1) adding one general- purpose lane In each direction ( "Build Alternative 1 "); (2) adding one toll lane to the existing carpool lane and adding one general- purpose lane In each direction ( "Build Alternative 3 "); and (3) transportation system and demand management programs, Including mass transit ("TSM/TDM/Mass Transit Alternative"). With regards to any of these options, from the available information, it is uncertain to what extent additional right -of -way may be required and what direct and Indirect Impacts the proposed widening and other contemplated actions will have on proximal properties in the City. As indicated on the OCTA website, Caltrans and the OCTA Intend to release a draft "Environmental Impact Statement/Environmental Impact Report" (Draft EIS/EIR) in "early 2012.4 Release of the Draft EIS /EIR will start a statutorily required comment period during which affected stakeholders can submit comments for consideration by the two project proponents. Sean Crumby, Assistant City Manager /Director of Public Works CEQA / NEPA Third -Party Review San Diego Freeway Improvement Project January 26, 2012 Page 2 A segment of the 1 -405 Freeway, between Valley View Street and the Son Gabriel River, traverses the City. Although benefitting from the freeway's presence, the City also shoulders a heavy burden with regards to noise, air quality, visual blight, and other Intrusive Impacts resulting from the estimated 401,000 AADT (annual average daily traffic) passing Post Mlle 24.044 (Jct. Rte. 605) each day. As Is typical of most widening projects, those Impacts Include, but may not be limited to: (1) aesthetic impacts of new or elevated sound walls; (2) aesthetic impacts associated. with Increased visibility and reduced separation distances between the freeway end adjoining land uses; (3) noise impacts resulting from the realignment of travel lanes, including construction noise impacts resulting from the construction of elevated Interchange Improvements and operational noise associated with Increased traffic volumes, reflective noise associated with the sound wells, and on -going maintenance activities; (4) light and glare Impacts associated with the realignment of travel lanes and elevated connectors; (5) traffic Impacts, Including short-term and long -term lane closures, alterations in traffic patterns, and loss of on -street and off - street parking; (6) phasing issues, Including timing and duration, resulting from construction activities; (7) Impacts to existing infrastructure systems (e.g., pump stations and water reservoir facilities); (8) service delivery impacts, particularly with regards to the delivery of emergency services; (9) land -use impacts, including issues regarding land -use compatibility, loss of land rights, forfeiture of development opportunities, and the creation and use of remnant parcels; (10) public safety impacts resulting from catastrophic events; and (11) economic impacts. Including loss or diminishment of valuation and restrictions on access and use. With regards to any recent dealings that the City may have had with Caltrans and the OCTA, notwithstanding the sincerity and level of professionalism exhibited by their representatives and consultants, project sponsors typically look at projects through a "different set of glasses° and offer up coat -based remedies rather than exploring more expensive alternatives and mitigation measures. EIS performed a similar third -party review of a similar freeway widening project for the City in 2001, submitting detailed comments on the °Draft Environmental Impact Report and Environmental Impact Statement - State Route 22/West Orange County Connection, FHWA- EIS-CA-01-04-D/SCH No. 980604001." We will let the quality of that document attest to our firm's qualificatlons and ability to formulate technical comments allowing affected agencies and private parties to meaningfully engage in productive dialogue with often uncommunicative and uncaring regulators and bring about project -level changes and obtain compensatory mitigation. CEQA Requirements Parties pursing actions or proceedings seeking to overturn an agency's entitlements based on allegations of noncompliance must first exhaust their administrative remedies. The courts have strictly held that there must be exhaustion as to the specific Issue(s) challenged. General and unrelated citations to near - issues in the record are not sufficient; challengeable issues must be assertively identified and presented to the reviewing agency prior to project approval. In Kane v. Redevelopment Agency of the City of Hidden Hills (1966), the courts have noted: "One of the strongest themes running through the body of CEQA case law is the beneficial Sean Crumby, Assistant City Manager/Director of Public Works CEQA t NEPA Third -Party Review San Diego Freeway Improvement Project January 26, 2012 Page 3 effect of public participation on the environmental review process. The State EIR Guidelines detail the steps for circulating negative declarations and draft EIR's to the public and governmental agencies for their comments. The purposes of public review are declared to be sharing expertise, disclosing agency analyses, checking for accuracy, detecting omissions, discovering public concerns, and soliciting counterproposals." The doctrine of exhaustion of administrative remedies typically imposes upon petitioners a duty to present, where such remedies exist, specific objections to proposed agency actions. If a petitioner seeks judicial relief without having first availed itself of the agency's remedies, the court must deny relief for lack of jurisdiction. Section 21177 of the Public Resources Code provides that a CEQA action or proceeding shall not be brought `unless the alleged grounds for noncompliance with this division were presented to the pubic agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the Issuance of the notice of determination' Under the exhaustion doctrine, stakeholders must first pursue all available opportunities to participate In the environmental compliance process. Scope of Services As specified, the basic purposes of CEQA are to: (1) Inform governmental decision makers and the public about the potential significant environmental effects of proposed activities; (2) Identify ways that environmental damage can be avoided or significantly reduced; (3) prevent significant, avoidable damage to the environment by requiring changes In projects through the use of alternatives or mitigation measures; (4) disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved (14 CCR 15002). The legislature intended CEQA to be interpreted in such a manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language (Laurel Heights Improvement Assn. v. Regents of the University of California). From the unique perspective of the City and its constituents, EIS will perform a third -party peer review of the Draft EIS/E1R for the purpose of: (1) assessing the document's adequacy to serve as an "Informational document' under CEQA and NEPA, including presentation of detailed information about the effects that the proposed project are likely to have on the local environment, listing the ways in which the significant effects of the project can be minimized, and Indicating the existence of project alternatives; (2) evaluating whether the document gives 'major consideration to preventing environmental damage" (Citizens for Quality Growth v. City of Mount Shasta); (3) Independently determining whether Caltrans and the OCTA have meet their shared responsibilities under CEQA and NEPA; and (4) identifying whether there exist other potential alternatives (other than the proposed project) which are 'capable of avoiding or substantially lessening any significant effects of the project." Using Its discretion and own expertise as to the precise nature of any resulting comments EIS will prepare a "draft letter report" for submittal to City staff within thirty (30) days of receipt of the Draft EISIEIR from the City and will prepare a'final letter report° based on any City comments which are received prior to the close of the public comment period). In addition, EIS' Principal (Lewandowski) will attend one meeting with City staff or others to obtain any relevant Sean Crumby, Assistant City Manager /Director of Public Works CEQA I NEPA Third -Party Review San Diego Freeway improvement Project January 26, 2012 Page 4 Information concerning the proposed project and to assist in the formulation of the letter report. Throughout the term of this work assignment, as required, EIS will maintain ongoing telephone communication with City staff and others, as determined by the City- Not-to-Exceed Cost EiS will perform the scope of services outlined herein for a not -to- exceed cost of $20,000. All work will be billed on a time- and - material and cost -plus basis In accordance with the rates and terms specified in EIS' Standard Rate Schedule. Unless explicitly Identified herein or in any supplement hereto, any additional efforts or expenditures that may be requested by the City and beyond this stated work program constitutes °out of scope" activities and will be billed in accordance with the rates and terms specified therein. Schedule EIS will deliver to the City a °draft letter report" within thirty (30) days of receipt of the Draft EIS/EiR from the City. The report shall be presented in a format conducive to submittal to Caltrans and the OCTA. EIS will strive to ensure that the report Is reasonably complete and presents an analysis of the major components of the Draft EIS/EIR most relevant to the City's interests and concerns. However, based on the anticipated length of the Draft EIS /EIR, the limited time frame, and the budgetary limits established herein, EIS may need to prioritize its review and focus only on those issues deemed by EIS to be most germane to the performance of this work assignment. Limitations As presented, this proposal does not include; (1) preparation of independent technical studies, original research, or other investigations, other than as explicitly described herein; (2) Involvement by other technical consultants or subconsultants, such as independent biologists, geologists, hydrologists, archaeologists, civil engineers, and transportation engineers; (3) preparation of any Independent siting analyses conducted to identify other potential alignments; (4) surface or subsurface investigations, including soil sampling and/or laboratory analysis; (5) formulation or technical review of any project - specific best management practices (BMPs), urban storm water management. plans (SUSMP), storm water pollution prevention plans (SWPPPs), or any quantitative or qualitative assessment or modeling of any water quality constituents; (6) preparation of any cost estimates, fiscal analyses, highest and best use studies, or detailed mitigation plans; (7) any computer simulations or other graphics; (8) National Register eligibility assessments; (9) trespass on private property to conduct field reconnaissance surveys; (10) attendance at meetings with Caltrans, OCTA, and their consultants; (11) preparation of expert witness testimony or appearance at any court proceedings; (12) the solicitation or review of any documents not readily available as part of the project's administrative record; and (13) review of the final EIS /EIR incorporating and responding to the City's comments. As a reputable consultant, EIS will not espouse a 'pro - project" or "adversarial" position and will not take a stance with regards to either the merits or need for the proposed project. EIS will conduct an objective assessment of the Draft EIS /EIR and focus on: (1) the technical adequacy Sean Crumby, Assistant City Manager /Director of Public Works CEQA 1 NEPA Thlyd•Party Review San Diego Freeway Improvement Project January 26, 2012 Page 5 of the document under CEQA/NEPA; and (2) the potential Impacts of the proposed project on the City and its constituents. EIS is neither a legal firm nor is the Principal an attorney. As such, any statements presented by EIS should not be construed as a legally -based interpretation of existing statutes and regulations. With regards to CEQA/NEPA compliance, the City is encouraged to seek early and effective involvement by legal counsel. The City acknowledges that EIS can provide no guarantees or'asaumnces that the efforts expended on the City's behalf will produce the desired results or, in any way, alter the actions of Caitrans or the OCTA. Absent a willingness by the City to pursue subsequent 11tigatlon, the project proponents' approval of the proposed project may be an inevitability and beyond the ability of EIS to materially alter. SSincerely. h Peter Lewandowski Principal Enclosure: Standard Rate Schedule ENVIRONMENTAL IMPACT SCIENCES STANDARD RATE SCHEDULE (January 1, 2012) Position Professional Rates Principal ................................................................................... $185.00 Senior Engineer ......................................................................... 175.00 Senior Planner / Scientist .................................... ........ --- ... 150.00 Associate Engineer ............ ....................................................... 125.00 Associate Planner/Scientist .............................. .........................100.00 Planner/Scientist ................................. ........................................ 86.00 Assistant Planner/Scientist . ............................... ..........................75.00 Support WordProcessor ........................................................................... 65.00 Technician................................................................................... 50.00 All direct costs will be billed at cost-plus-ten (10) percent, Automobile mileage Will be billed at $0.52 per mile and travel time will be billed at the designated rate. All Invoices are payable within thirty (30) days of receipt and, unless an alternative billing plan is specified, will be submitted monthly for all work In progress. ErMrawamtal ConwUmto enYWnn1ant*cmmt Exhibit C Ermronrrwtal Impact 5c6in 26051 Via Concha (_ Mir&ion Viejo, California 92691.5614 v 949.837.1195 949.8373935 Fax July 2, 2012 Sean Crumby, P.E. Assistant City ManagerlDirector of Public Works City of Seal Beach 211 Eighth Street Seal Beach, California 90740 Change Order No. 1 CEQA/NEPA Third -Party Review California Department of Transportation /Orange County Transportation Authority San Diego Freeway (1 -405) Improvement Project Dear Sean: Environmental Impact Sciences (EIS) appreciates the opportunity to work cooperatively with the Public Works Department (Department) in reviewing and formulating comments on the California Department of Transportation's (Caltrans) and the Orange County Transportation Authority's (OCTA) "Draft Environmental Impact Report/Environmental Impact Statement — San Diego Freeway Improvement Project, Orange and Los Angeles Counties, California, SCH #2009091001- (DEIR /S). In our January 26, 2012 proposal, our budget specified attendance at one (1) meeting with City of Seal Beach (City) staff and was based on a specified level of service (as dictated by the contract amount and specified billing rates). The scope of service and attendant budget was prepared in advance of the release of the DEIRIS and, as you may recall, the contract amount was less than EIS had indicated as the minimal amount required in order to perform a third -party review (minimum of $25,000). Aware of the evolving nature of similar undertakings, our proposal specified that "any additional efforts or expenditures that may be requested by the City and beyond this stated work program constituted 'out of scope' activities and will be billed in accordance with the rates and terms specified therein." Within the critical time limits imposed by the Department for the completion of our work effort and the pressing deadline established by Caltrans, there was not sufficient time to previously submit individual change order requests for work performed in exceedance of our contract. Now that our analysis of the DEIR/S has been submitted, EIS kindly requests that the City's approve a change order to provide reasonable compensation for the "out -of- scope* work that has been requested, including attendance at five (5) meetings with Department staff and the additional labor hours that have been expended in the completion of our third -party review. In addition, because of the significance of this project to the City and the likely need for further participation, if such participation where to be deemed beneficial, EIS requests a budget augmentation for any future work that the City may determine to be necessary or appropriate with regards to the 1-405 Improvement Project. Presented herein is a requested budget augmentation (Change Order No. 1) for the additional work requested by the Department and for the next phase of the City's ongoing efforts to reasonably ensure that Caltrans and the OCTA address the community's concerns. Sean Crumby, Assistant City Manager /Director of Public Works San Diego Freeway Improvement Project Change Order No. 1 July 2, 2012 Page 2 Change Order No. 1 Task CO1.1: Meeting Attendance. EIS has attended five (5) meetings with Department staff and has been asked to attend an additional meeting next week. Although the precise number of future meetings cannot be estimated at this time, the level of public concern and the ongoing nature of the environmental process suggest that attendance at future meetings may be required. This budget request assumes attendance at a total of eight (8) meetings, inclusive of those now scheduled and those which have already been conducted. Task CO1.2: Staff Report and Additional Written Work Products. As requested, EIS has prepared additional supportive documentation in order to assist Department staff and others dissemination information concerning the proposed project. This task assumes only work completed to date. Any similar work effort would be completed as part of Task CO1.4 (Future On -Call Services) below. Task CO1.3: Technical Comments. The DEIR/S was more extensive that could have been envisioned, the deficiencies with the document more substantial than would be expected, and the work effort to prepare a reasonably complete product more encompassing than could be completed within the assigned budget. Based on discussions with Department staff and after listening to the level of public opposition, it became evident that the level of review needed was not merely a cursory assessment but required the preparation of a legally decisive challenge to the document's adequacy. EIS believes that the work produce submitted could support winnable litigation should the City elect to pursue that remedy. Task COI A: Future On -Call Services. EIS cannot precisely know what to expect because the City is still in discussions with the OCTA and because the City has yet to determine its future course of action. As a result, this added task serves as a general "placeholder" with an assigned budget based on a further expenditure of an assigned number of labor hours. Should the City not require any additional support services, these funds would remain unexpended; however, if something more were to be required, a budget would be available to promptly respond to any future Departmental requests. Not -to- Exceed Cost (Change Order No. 1) The following tasks comprise this change order request: • Task CHIA: Meeting Attendance $ 6,825 • Task CH1.2: Staff Report and Additional Written Work Products 1,850 Task CH1.3: Technical Comments 8,925 • Task CH1.4: Future On -Call Services 7.400 Total Not -to- Exceed Cost: $25,000 All work will be billed on a time -and- material and cost -plus basis in accordance with the rates and terms specified in EIS' Standard Rate Schedule. Unless explicitly identified herein or in any supplement hereto, any additional efforts or expenditures that may be requested by the City constitutes "out of scope" activities and will be billed in accordance with the rates and terms specified therein. Sean Crumby, Assistant City Manager/Director of Public Works San Diego Freeway Improvement Project Change Order No. 1 July 2, 2012 Page 3 Unless otherwise amended, the 'limitation" outlined in our January 16, 2012 proposal remain in force. EIS can again offer no assurances or guarantees that the efforts expended on the City's behalf will produce the desired results. EIS will, however, continue to provide the high - quality work products that the City has previously received from our firm and will professionally represent the Department in all our assigned endeavors. Should you have any questions concerning this change order request, please feel free to contact me at (949) 837 -1195. Sincerely, WJ. Peter Lewandowski Principal xhibit E ErMrmnimwl mpaet xiencim 26051 Via Concha Mioeion Viejo, California 92691.5614 949.537.1195 949.837.3935 Fax January 29, 2013 Michael S. Ho, Deputy Director of Public Works /City Engineer City of Seal Beach Department of Public Works 211 Eighth Street Seal Beach. California 90740 Change Order No. 2: 405 - Freeway Widening Project California Department of Transportation /Orange County Transportation Authority San Diego Freeway (1 -405) Improvement Project Dear Michael: Based on the Orange County Transportation Authority's (OCTA) and the California Department of Transportation's (Caltrans) decision to revise and again circulate the "Draft Environmental Impact Report/Environmental Impact Statement — San Diego Freeway Improvement Project, Orange and Los Angeles Counties, California, SCH #2009091001" (DEIR /S) for the proposed 1- 405 Freeway widening project, Environmental Impact Sciences (EIS) submits this change order request to the City of Seal Beach (City) to ensure that funds are timely available should the City deem it beneficial to augment EIS' current scope of services to review and comment on the "Recirculated Draft Environmental Impact ReportlEnvironmental Impact Statement — San Diego Freeway Improvement Project, Orange and Los Angeles Counties, California, SCH #2009091001" (Recirculated DEIR /S). On January 23, 2013, Will Kempton, OCTA Chief Executive Officer advised the OCTA's Board of Directors (Board) of staffs decision to prepare the Recirculated DEIR /S. Absent from that memorandum is any reference to: (1) the Board's October 22, 2012 decision to identify "Alternative 3" as the proposed project, and (2) a description of the precise nature of the changes to the freeway widening project which now predicate recirculation. The memorandum does, however, indicate that study results received after the Board's action serve as the Impetus for staffs decision and that neither the Board's policy declaration nor comments received during the noticed public review period are the reasons that the previous document is being materially altered. Interestingly, during its hearings on September 24, 2012 and October 22, 2012, the Board was not notified of the existence of those ongoing studies or their potential implication with regards to the project's environmental documentation. Since the content and the release date of the Recirculated DEIR /S are unknown, no specific scope of services is presented herein. Outlined below is a requested budget augmentation (Change Order No. 2) for the next phase of the City's ongoing efforts to reasonably ensure that OCTA and Caltrans address the community's legitimate environmental concerns. 'P 4601"1 Environmental (onminnts eovironment@(ox.net Michael S. Ho 405- Freeway Widening Project January 29, 2013 Page 2 Change Order No. 2 Task CO2.1: Future On -Call Services. At this stage, EIS cannot precisely know what to expect other than OCTA's and Caltrans' plans to embark on an unspecified "recirculation" of the previously released DEIR /S. In the absence of that document and a clear indication of what to expect, the City is presently unable to determine its future course of action and the specific guidance to its vendors. As a result, this added task serves as a general "placeholder' with an assigned budget based on a further expenditure of costs up to the stated contract limit. Should the City's request for additional support services not elevate to that budgeted amount, allocated monies would remain unexpended. If additional costs in excess of that allocation were, however, to be incurred, a supplemental budget augmentation would likely be required to respond to any future City- directed work requests. Not -to- Exceed Cost (Change Order No. 2) The following task comprises this change order request: • Task CH2.1: Future On -Call Services 20.000 Total Not -to- Exceed Cost: $20,000 All work will be billed on a time - and - materials and cost -plus basis in accordance with the rates and terms specified in EIS' Standard Rate Schedule. Unless otherwise amended, the "limitation" outlined in our January 16, 2012 proposal remain in full force and effect. Should you have any questions concerning this change order request, please feel free to contact me at (949) 837 -1195. Sincerely, GC I Peter Lewandowski Principal AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 Environmental Impact Sciences 26051 Via Concha Mission Viejo, CA 92691 -5614 949.837.1195 phone 949.837.3935 Fax THIS AMENDMENT is made as of July 23, 2012, by and between the City of Seal Beach, a California charter city ( "City "), and Environmental Impact Sciences. ( "Consultant "). 1 of 3 RECITALS A. WHEREAS, on February 27, 2012, the City Council approved a professional services agreement ( "Agreement ") with Consultant; and B. WHEREAS, the parties would like to amend the Agreement to increase Consultant's compensation by $25,000. AGREEMENT NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: 1. Section 3 (Consultant's Compensation) of the Agreement is hereby amended to increase Consultant's compensation by $25,000 to read as follows: "3.0 Consultant's Compensation. City will pay Consultant in accordance with the hourly rates shown on the fee schedule included in Exhibit A but in no event will the City pay more than $45,000. Any additional work authorized by the City pursuant to Section 1.4 will be compensated in accordance with the fee schedule." 2. Except as amended herein, the terms and provisions of the Agreement shall remain in full force and effect. 3. The City Clerk is hereby directed to attach to the Agreement this Amendment as Exhibit B thereto and the attached proposal dated July 2, 2012 as Exhibit C thereto after this Amendment has been fully executed by the parties. IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Amendment as of the date first written above. 2of3 CITY OF SEAL BEACH Q WA Attest: By: Li da Devine, City Clerk Approved as to Form: CONSULT By: Name: IPCTqL L,- JAJ')0 nJS r 1 Title: Name: Title: By: Quinn M. Barrow, 6ity Attorney 3 of 3 PROFESSIONAL SERVICES AGREEMENT Between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 E -*l Environmental Impact Sciences 26051 Via Concha Mission Viejo, CA 92691 -5614 949.837.1195 phone 949.837.3935 Fax This Professional Service Agreement ( "the Agreement ") is made as of February 27, 2012 (the "Effective Date "), by and between Environmental Impact Sciences ( "Consultant "), a Consulting Engineering Company and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). S7296- 0001 \1236808v1.doc RECITALS A. City desires certain professional services. B. Consultant represents that it is qualified and able to provide City with such services. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. AGREEMENT 1.0 Scope of Services 1.1. Contractor shall provide services to support the City of Seal Beach with response to 1 -405 Widening Environmental Impact Report/Environmental Impact Study in accordance with the proposal dated January 26, 2012 attached hereto as Exhibit A. 1.2. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local law. 1.4. Consultant will not be compensated for any work performed not specified in the scope of services in exhibit A unless the City authorizes such work in advance and in writing. The City Manager may authorize payment for additional work up to a cumulative maximum of $10,000. Payment for additional work in excess of $10,000 requires prior City Council authorization. 2.0 Term This term of this Agreement shall commence as of the Effective Date and shall continue for a term of 1 year unless previously terminated as provided by this Agreement. 3.0 Consultant's Compensation City will pay Consultant in accordance with the hourly rates shown on the fee schedule included in Exhibit A but in no event will the City pay more than $20,000. Any additional work authorized by the City pursuant to Section 1.4 will be compensated in accordance with the fee schedule. 2 of 9 S7296 -0001 \1236808v1.doc 4.0 Method of Payment 4.1. Consultant shall submit to City monthly invoices for all services rendered pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end of the month during which the services were rendered and shall describe in detail the services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the services performed for each day in the period. City will pay Consultant within 30 days of receiving Consultant's invoice. City will not withhold any applicable federal or state payroll and other required taxes, or other authorized deductions from payments made to Consultant. 4.2. Upon 24 -hour notice from City, Consultant shall allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 4.2 shall survive for two years following the termination of this Agreement. 5.0 Termination 5.1. This Agreement may be terminated by City, without cause, or by Consultant based on reasonable cause, upon giving the other party written notice thereof not less than 30 days prior to the date of termination. 5.2. This Agreement may be terminated by City upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 6.0 Party Representatives 6.1. The City Manager is the City's representative for purposes of this Agreement. 6.2. Peter Lewandowski is the Consultant's primary representative for purposes of this Agreement. 7.0 Notices 7.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses: 3 of 9 S7296 -0001 \1236808v1.doc To City: City of Seal Beach 211 -8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Environmental Impact Sciences 26051 Via Concha Mission Viejo, CA 92691 -5614 949.837.1195 Phone 949.837.3935 Fax Attn: Peter Lewandowski 7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 8.0 Independent Contractor 8.1. Consultant is an independent contractor and not an employee of the City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 8.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section. 9.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. 4of9 S7296 -0001 \1236808v1.doc 10.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 11.0 Insurance 11.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements shall be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 11.2. Consultant shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional Liability. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Professional Liability: $1,000,000 per claim /aggregate. 11.3. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days prior written notice by certified mail, return receipt requested, has been given to the City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain 5 of 9 S7296- 0001 \1236808v1.doc of coverage excess of the Consultant's scheduled underlying coverage and that any insurance or self- insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible. 11.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers. 11.5. Any deductibles or self- insured retentions shall be declared to and approved by the City. Consultant guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 12.0 Indemnification, Hold Harmless, and Duty to Defend Consultant shall defend, indemnify, and hold the City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively "Indemnitees ") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, or its agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of the City. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and /or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its directors, 6of9 S7296- 0001 \1236808v1.doc officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement. 13.0 Equal Opportunity Consultant affirmatively represents that it is an equal opportunity employer. Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non- discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 14.0 Labor Certification By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 15.0 Entire Agreement This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties. 16.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 17.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 18.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 19.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, 7of9 S7296 -0001 \1236808v1.doc privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 20.0 Prohibited Interests; Conflict of Interest 20.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code § §1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 20.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift. 20.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, non - contractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection. 21.0 Attorneys' Fees If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorneys' fees and other costs incurred in connection therewith. 8 of 9 S7296-0001\1 236808vl.doc 22.0 Exhibits All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 23.0 Corporate Authority The person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of said Party and that by his or her execution, the Consultant is formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH - . 1 CONSULTANT PV °✓ By: Name: FETr--(L— L-E�LAJOa,,kt-- l Attest: Its: By: By: Linda Devine, City C erk Name: Approved as to Form: Its: By: uinn Barrow, City torney 9 of 9 S7296-0001\1 236808vl.doc �'6z�►Jc, i ��-� ErMronmmW Impaa Sclenceo 26051 Via Concha Mis6ion Viejo, California 92691.5614 - } °Q 949.837.1195 949.837.3935 Fax January 26, 2012 Sean Crumby, P.E. Assistant City Manager /Director of Public Works City of Seal Beach 211 Eighth Street Seal Beach, California 90740 Proposal: CEQA /NEPA Third -Party Review California Department of Transportation (Caltrans) Orange County Transportation Authority (OCTA) San Diego Freeway (1 -405) Improvement Project Dear Mr. Crumby: Environmental Impact Sciences (EIS) has extensive experience in preparing both comprehensive, legally defensible environmental impact reports for complex public and private projects and detailed third -party peer reviews of documents prepared by other consultants. Skilled as both a practitioner and a key member of an agency's legal team, EIS is often tasked to ensure that documents prepared under the provisions of the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA) fulfill their regulatory intent "not only to protect the environment but also to demonstrate to the public that it is being protected" (14 CCR 15003). As a follow-up to our recent conversation, this correspondence constitutes a proposal to conduct an independent third -party review of existing and upcoming CEQA/NEPA documentation in order to assist the City of Seal Beach (City) formulate written comments on a proposed freeway widening project that may adversely impact the City, its residents, and business community. The California Department of Transportation (Caltrans) and the Orange County Transportation Authority (OCTA) are presently proposing to widen the San Diego Freeway (1 -405) between State Route 73 (SR -73) and Interstate 605 (1 -605). Development plans include, but are not limited to, adding two general- purpose lanes in both directions and associated but unspecified interchange improvements (identified as "Build Alternative 2 "). Other options being considered by Caltrans and the OCTA include: (1) adding one general- purpose lane in each direction ( "Build Alternative 1 "); (2) adding one toll lane to the existing carpool lane and adding one general- purpose lane in each direction ( "Build Alternative 3 "); and (3) transportation system and demand management programs, including mass transit ( "TSM /TDM/Mass Transit Alternative "). With regards to any of these options, from the available information, it is uncertain to what extent additional right -of -way may be required and what direct and indirect impacts the proposed widening and other contemplated actions will have on proximal properties in the City. As indicated on the OCTA website, Caltrans and the OCTA intend to release a draft "Environmental Impact Statement/Environmental Impact Report" (Draft EIS /EIR) in "early 2012." Release of the Draft EIS /EIR will start a statutorily required comment period during which affected stakeholders can submit comments for consideration by the two project proponents. Sean Crumby, Assistant City Manager /Director of Public Works CEQA / NEPA Third -Party Review San Diego Freeway Improvement Project January 26, 2012 Page 2 A segment of the 1 -405 Freeway, between Valley View Street and the San Gabriel River, traverses the City. Although benefitting from the freeway's presence, the City also shoulders a heavy burden with regards to noise, air quality, visual blight, and other intrusive impacts resulting from the estimated 401,000 AADT (annual average daily traffic) passing Post Mile 24.044 (Jct. Rte. 605) each day. As is typical of most widening projects, those impacts include, but may not be limited to: (1) aesthetic impacts of new or elevated sound walls; (2) aesthetic impacts associated with increased visibility and reduced separation distances between the freeway and adjoining land uses; (3) noise impacts resulting from the realignment of travel lanes, including construction noise impacts resulting from the construction of elevated interchange improvements and operational noise associated with increased traffic volumes, reflective noise associated with the sound walls, and on -going maintenance activities; (4) light and glare impacts associated with the realignment of travel lanes and elevated connectors; (5) traffic impacts, including short -term and long -term lane closures, alterations in traffic patterns, and loss of on- street and off - street parking; (6) phasing issues, including timing and duration, resulting from construction activities; (7) impacts to existing infrastructure systems (e.g., pump stations and water reservoir facilities); (8) service delivery impacts, particularly with regards to the delivery of emergency services; (9) land -use impacts, including issues regarding land -use compatibility, loss of land rights, forfeiture of development opportunities, and the creation and use of remnant parcels; (10) public safety impacts resulting from catastrophic events; and (11) economic impacts, including loss or diminishment of valuation and restrictions on access and use. With regards to any recent dealings that the City may have had with Caltrans and the OCTA, notwithstanding the sincerity and level of professionalism exhibited by their representatives and consultants, project sponsors typically look at projects through a "different set of glasses" and offer up cost -based remedies rather than exploring more expensive alternatives and mitigation measures. EIS performed a similar third -party review of a similar freeway widening project for the City in 2001, submitting detailed comments on the "Draft Environmental Impact Report and Environmental Impact Statement - State Route 22/West Orange County Connection, FHWA- EIS-CA-01-04-D/SCH No. 980604001." We will let the quality of that document attest to our firm's qualifications and ability to formulate technical comments allowing affected agencies and private parties to meaningfully engage in productive dialogue with often uncommunicative and uncaring regulators and bring about project -level changes and obtain compensatory mitigation. CEQA Requirements Parties pursing actions or proceedings seeking to overturn an agency's entitlements based on allegations of noncompliance must first exhaust their administrative remedies. The courts have strictly held that there must be exhaustion as to the specific issue(s) challenged. General and unrelated citations to near - issues in the record are not sufficient; challengeable issues must be assertively identified and presented to the reviewing agency prior to project approval. In Kane v. Redevelopment Agency of the City of Hidden Hills (1986), the courts have noted: "One of the strongest themes running through the body of CEQA case law is the beneficial Sean Crumby, Assistant City Manager /Director of Public Works CEQA / NEPA Third -Party Review San Diego Freeway Improvement Project January 26, 2012 Page 3 effect of public participation on the environmental review process. The State EIR Guidelines detail the steps for circulating negative declarations and draft EIR's to the public and governmental agencies for their comments. The purposes of public review are declared to be sharing expertise, disclosing agency analyses, checking for accuracy, - detecting omissions, discovering public concerns, and soliciting counterproposals." The doctrine of exhaustion of administrative remedies typically imposes upon petitioners a duty to present, where such remedies exist, specific objections to proposed agency actions. If a petitioner seeks judicial relief without having first availed itself of the agency's remedies, the court must deny relief for lack of jurisdiction. Section 21177 of the Public Resources Code provides that a CEQA action or proceeding shall not be brought "unless the alleged grounds for noncompliance with this division were presented to the pubic agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." Under the exhaustion doctrine, stakeholders must first pursue all available opportunities to participate in the environmental compliance process. Scope of Services As specified, the basic purposes of CEQA are to: (1) inform governmental decision makers and the public about the potential significant environmental effects of proposed activities; (2) identify ways that environmental damage can be avoided or significantly reduced; (3) prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures; (4) disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved (14 CCR 15002). The legislature intended CEQA to be interpreted in such a manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language (Laurel Heights Improvement Assn. v. Regents of the University of California). From the unique perspective of the City and its constituents, EIS will perform a third -party peer review of the Draft EIS /EIR for the purpose of: (1) assessing the document's adequacy to serve as an "informational document" under CEQA and NEPA, including presentation of detailed information about the effects that the proposed project are likely to have on the local environment, listing the ways in which the significant effects of the project can be minimized, and indicating the existence of project alternatives; (2) evaluating whether the document gives "major consideration to preventing environmental damage" (Citizens for Quality Growth v. City of Mount Shasta); (3) independently determining whether Caltrans and the OCTA have meet their shared responsibilities under CEQA and NEPA; and (4) identifying whether there exist other potential alternatives (other than the proposed project) which are "capable of avoiding or substantially lessening any significant effects of the project." Using its discretion and own expertise as to the precise nature of any resulting comments EIS will prepare a "draft letter report" for submittal to City staff within thirty (30) days of receipt of the Draft EiS /EIR from the City and will prepare a "final letter report" based on any City comments which are received prior to the close of the public comment period). In addition, EIS' Principal (Lewandowski) will attend one meeting with City staff or others to obtain any relevant Sean Crumby, Assistant City Manager /Director of Public Works CEQA I NEPA Third -Party Review San Diego Freeway improvement Project January 26, 2012 Page 4 information concerning the proposed project and to assist in the formulation of the letter report. Throughout the term of this work assignment, as required, EIS will maintain ongoing telephone communication with City staff and others, as determined by the City. Not -to- Exceed Cost EIS will perform the scope of services outlined herein for a not -to- exceed cost of $20,000. All work will be billed on a time - and - material and cost -plus basis in accordance with the rates and terms specified in EIS' Standard Rate Schedule. Unless explicitly identified herein or in any supplement hereto, any additional efforts or expenditures that may be requested by the City and beyond this stated work program constitutes "out of scope" activities and will be billed in accordance with the rates and terms specified therein. Schedule EIS will deliver to the City a "draft letter report" within thirty (30) days of receipt of the Draft EIS /EIR from the City. The report shall be presented in a format conducive to submittal to Caltrans and the OCTA. EIS will strive to ensure that the report is reasonably complete and presents an analysis of the major components of the Draft EIS /EIR most relevant to the City's interests and concerns. However, based on the anticipated length of the Draft EIS /E1R, the limited time frame, and the budgetary limits established herein, EIS may need to prioritize its review and focus only on those issues deemed by EIS to be most germane to the performance of this work assignment. Limitations As presented, this proposal does not include: (1) preparation of independent technical studies, original research, or other investigations, other than as explicitly described herein; (2) involvement by other technical consultants or subconsultants, such as independent biologists, geologists, hydrologists, archaeologists, civil engineers, and transportation engineers; (3) preparation of any independent siting analyses conducted to identify other potential alignments; (4) surface or subsurface investigations, including soil sampling and /or laboratory analysis; (5) formulation or technical review of any project - specific best management practices (BMPs), urban storm water management. plans (SUSMP), storm water pollution prevention plans (SWPPPs), or any quantitative or qualitative assessment or modeling of any water quality constituents; (6) preparation of any cost estimates, fiscal analyses, highest and best use studies, or detailed mitigation plans; (7) any computer simulations or other graphics; (8) National Register eligibility assessments; (9) trespass on private property to conduct field reconnaissance surveys; (10) attendance at meetings with Caltrans, OCTA, and their consultants; (11) preparation of expert witness testimony or appearance at any court proceedings; (12) the solicitation or review of any documents not readily available as part of the project's administrative record; and (13) review of the final EIS /EIR incorporating and responding to the City's comments. As a reputable consultant, EIS will not espouse a "pro - project" or "adversarial" position and will not take a stance with regards to either the merits or need for the proposed project. EIS will conduct an objective assessment of the Draft EIS /EIR and focus on: (1) the technical adequacy Sean Crumby, Assistant City Manager /Director of Public Works CEQA / NEPA Third -Party Review San Diego Freeway Improvement Project January 26, 2012 Page 5 of the document under CEQA/NEPA; and (2) the potential impacts of the proposed project on the City and its constituents. EIS is neither a legal firm nor is the Principal an attorney. As such, any statements presented by EIS should not be construed as a legally -based interpretation of existing statutes and regulations. With regards to CEQA/NEPA compliance, the City is encouraged to seek early and effective involvement by legal counsel. The City acknowledges that EIS can provide no guarantees or assurances that the efforts expended on the City's behalf will produce the desired results or, in any way, alter the actions of Caltrans or the OCTA. Absent a willingness by the City to pursue subsequent litigation, the project proponents' approval of the proposed project may be an inevitability and beyond the ability of EIS to materially alter. Sincerely, Peter Lewandowski Principal Enclosure: Standard Rate Schedule EImf 26051 Via Concha Misslon Viejo, California 9269115614 g ` 949,837,1195 949.837.3935 Fax ENVIRONMENTAL IMPACT SCIENCES STANDARD RATE SCHEDULE (January 1, 2012) Position Professional Rates Principal.................................................... ............................... $185.00 Senior Engineer ......... ............................... ..175.00 ............................... Senior Planner /Scientist .... ............................... .........................150.00 Associate Engineer ........ ............................... .... .........................125.00 Associate Planner / Scientist .............................. .........................100.00 Planner / Scientist ........................................... ............................... 85.00 Assistant Planner /Scientist . ............................... ..........................75.00 Support WordProcessor .................. ............................... ..........................65.00 Technician.......................... ............................... ..........................50.00 All direct costs will be billed at cost -plus -fen (10) percent. Automobile mileage will be billed at $0.52 per mile and travel time will be billed at the designated rate. All invoices are payable within thirty (30) days of receipt and, unless an alternative billing plan is specified, will be submitted monthly for all work in progress. Environmantai Consultants anvlronnlant@eox.nat