HomeMy WebLinkAboutCC AG PKT 2015-09-28 #F AGENDA STAFF REPORT
DATE: September 28, 2015
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Jim Basham, Director of Community Development/Interim Director
of Public Works
SUBJECT: CONTRACT AMENDMENT FOR ENVIRONMENTAL
IMPACT SCIENCES FOR PROFESSIONAL SERVICES
SUMMARY OF REQUEST:
That the City Council adopt Resolution No. 6595 amending the Professional
Service Agreement with Environmental Impact Sciences for an additional
$30,000 and approving Budget Amendment No. 16-03-01 in the amount of
$30,000.
BACKGROUND AND ANALYSIS:
On May 18, 2012, the Orange County Transportation Authority (OCTA) released
an Environmental Impact Report (EIR) to widen the 405 freeway with four
alternatives. One of the four alternatives is to add toll lanes. The project lies
between the 605 and 73 freeways in Orange County.
In opposition to the proposed toll lanes, several cities mutually came together to
form a Corridor Cities Coalition which includes Cities of Los Alamitos,
Westminster, Huntington Beach, Fountain Valley, Costa Mesa and Seal Beach.
The six cities will be the most impacted from this proposed project.
To help aid in the opposition to the proposed toll lanes on the 1-405 Widening
Project (Project) and provide professional consulting services, the City retained
Environmental Impact Sciences (EIS). They are an environmental firm
specializing in the CEQA process. EIS has prepared responses for numerous
agencies on a variety of large scale projects similar in magnitude to the 1-405
widening project. The principal, Mr. Peter Lewandowski, has been personally
working on this project and assisted the City in commenting on the 1-405 EIR.
By working with EIS, the City of Seal Beach has comprehensively advocated
against the proposed 1-405 toll lanes and provided technical written comments to
the re-release of the EIR. We anticipate that further professional services will be
Agenda Item F
required as we review and comment on proposals for mitigation, and other
aspects of the litigation and the Project.
The City Council is asked to authorize the City Manager to execute an
amendment for a maximum of$30,000 for the above professional services.
ENVIRONMENTAL IMPACT:
There is no environmental impact related to this item.
LEGAL ANALYSIS:
The City Attorney has review and approved as to form.
FINANCIAL IMPACT:
The approved Fiscal Year 2015/16 budget shows $299,179 in Traffic Impact
Fees remaining. Staff proposes to use up to $30,000 from Traffic Impact Fees,
which leaves a balance of $269,179. An authorization for Budget Amendment
#16-03-01 is required.
Description Account Revised/Adopted Proposed Budget(diff)
Bu et Bu et Amendment
Contract Professional 049-33314000 5 30,D00 S 30,000
RECOMMENDATION:
That the City Council adopt Resolution No. 6595 amending the Professional
Service Agreement with Environmental Impact Sciences for an additional
$30,000 and approving Budget Amendment No. 16-03-01 in the amount of
$30,000.
MITT D BY.: NOTED AND APPROVED:
IL
M Bashaar Iji Ingram City a er
hector of Community Development/
terim Director of Public Works
Prepared by: Michael Ho, Dep. Dir. PW/City Engineer
Attachments:
A. Resolution No. 6595
B. Environmental Impact Sciences Contract Amendment
C. Environmental Impact Sciences Existing Contract
Page 2
RESOLUTION NUMBER 6595
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING A CONTRACT AMENDMENT FOR A
PROFESSIONAL SERVICES AGREEMENT WITH
ENVIRONMENTAL IMPACT SCIENCES
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:
Section 1. The City Council hereby approves Amendment No. 3 to the existing
Professional Services Agreement dated February 13, 2012, as
previously amended, between the City of Seal Beach and
Environmental Impact Sciences (Agreement)for services related to
the challenge to the 1-405 FEIR in an amount not to exceed
$30,000.
Section 2 The City Council approves Budget Amendment#16-03-01
Description Accourunt RWsed/Adopted Proposed Budget(dirt
Bruct ,et Budget Amendment
Contract Professional 049.33344000 $ • $ 30,0,00 $ 30,000
Section 3. The City Council hereby authorizes the City Manager to execute
Amendment No. 3 to the Agreement for Professional Services
between the City of Seal Beach and Environmental Impact
Sciences.
PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a
regular meeting held on the 281r,day of eptembef„ 2015 by the following!vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
Mayor
ATTEST:
Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Tina Knapp, Acting City Clerk of the City of Seal Beach, do hereby certify that
the foregoing resolution is the original copy of Resolution Number 6595 on file in
the office of the City Clerk, passed, approved, and adopted by the Seal Beach
City Council at a regular meeting held on the a!day of Se,, ternber, 2015.
Acting City Clerk
PROFESSIONAL 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.
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 Aareement is herebv amended to read as
follows:
"22.0 Exhibits
22.1 This Agreement includes the following exhibits:
• Exhibit A (Proposal Letter dated January 26, 2012 re: CEQA/NEPA Third
Partv Review from Peter Lewandowski Environmental Impact. Sciences to
Sean Crumby, Assistant Ci 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 Ci
of Seal Beach and Environmental Impact Sciences dated Janu�ary 23
2012) ('Amendment No. 11;
• Exhibit C (Change Order No. 1 CEQA/NEPA Third-Party Review Proposal
Letter dated Jul y.2, 2012,.from Peter Lewandowski, Environmental Impact
Sciences, to Sean Crumby, Assistant Cit y Manager/Director of Public
Works, Cit y of Sea] Beach),
• Exhibit D (Professional Services 6greement Amendment No. 2 between
City of Seal Beach and Environmental Impact Sciences,, dated ,Februau
11, 2013) ("Amendment No. 2"),
• Exhibit E (Chanae Order No. 2: 405-Freewav Widening Proiect Proposal
Letter dated January 29. 2013. from Peter Lewandowski. Environmental
Impact Sciences, to Sean Crumb y, Assistant City Manage r/Director of
Public Works, City of Sea] Beach):
• Exhibit F (Change Order No. 5: 405-Freeway Wi�dening Project Proposal
Letter dated August 8, 2015, from Peter Lewandowski, .-Environmental
Impact Sciences, to Sean Crumby, Assistant Cj_ty-Manager/Director of
Public Works. Citv of Seal Beach), and
• Exhibit G (Professional Services Agreement Amendment No. 3 between
CLty,of Seal Beach and Environmental Impact Sciences, dated September
8, 2015) ("Amendment No. L
22.2 All exhibits referenced in this Agreement are hereby incorporated into the
Aareement as if set forth in full herein- In the event of anv material
discreDancv between the terms of anv exhibit so incorporated and the terms
of this Agreement, the terms of this Agreement shall control."'
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 d) 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:
CITY OF SEAL BEACH CONSULTANT: ENVIRONMENTAL
IMPACT SCIENCES
Jill R. Ingram, City Manager President or Vice President
ATTEST:
Tina Knapp, Acting City Clerk Vice President or Secretary
APPROVED AS TO FORM:
Craig A. Steele, City Attorney
26051 Via Concha
iooion Viejo,California 92691.5014
949.6 7.11 5 949. 37.3935 Fax
/ir ,Oa
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:
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,
Peter Lewandowski
Principal
PROFESSIONAL SERVICES AGREEMENT
AMENDMENT NO. 2
Between
7 N
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 Februay 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:
661.0 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 CO JUANIT
A �
ill hgram, ity Ma t&r President or Vice President
Law
AT ES`f':
W6 Devine, City Clerk Vice President or Secretary
AP OVED AS ORM:
Attorney
Exhibit
Erwlrommmtal impact 6doncm
26051 Yle Corr
Mission Viejo,Callfornla 92691.5614
949,657.1195 945.837.5955 Fax
January 28,2012
Sean Crumby, P.E.
Assistant City Manager/Director of Public Works
City of Seal Beach
211 Eighth Street
Seal Beach,Califomla 80740
Proposal: CEQA/NEPA Third-Party Review
California Department of Transportation(Caltrans)
Orange County Transportation Authortyy (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 (1405) between
State Routs 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 11; (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 ('TSMITDM/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 webslte, 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 Mlle
24.044(Jet.Rte.605)each day.
As Is typical of most widening projects, those Impacts include, but may, net be limited to, (1)
aesthetic impacts of new or elevated sound walls; (2) aesthetic impacts associated.with
Increased visibility and reduced separatlon 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 ongoing maintenance activities; (4) light and glare impacts assoclated 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
diminlshment of valuation and restrictlons 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 qualificatlons and abliky 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 hold 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 I 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
dotal] 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 Ounless the alleged grounds for
noncompliance with this dlvlsion 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 Caitrans 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 1 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 tlme-and-materlal 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/E1R from the City. The report shall be presented in a format conducive to submittal to
Cattrans 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; EISIEIR most relevant to the City's
interests and concerns. However, based on the anticipated length of the Draft EISIEIR, 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 sbconsultants, 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;
( ) surface or subsurface investigations, including soil sampling and/or laboratory analysis„ (5)
formulation or technical review of any project spectflc best management practices (EMPs),
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 aimulatlons or other graphics; (8) National
Register eligibility assessments; (9) trespass on private property to conduct field
reconnaissance surveys; (10) attendance at meetings with Caitrans, 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 EISIEIR 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 EISIEIR 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 28,2012
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
I of existing statutes and regulations. With regards to CEQAlNEPA 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
Em4ranmmtel lmp&t adewes-
26051 Via Concha
Mle6fon YieJo,CabPornia 92691.5614
949.837.1195 949.837.3935 Fax
ENVIRONMENTAL IMPACT SCIENCES
STANDARD RATE SCHEDULE
(January 1,2012)
Pelitio es.
Professional
Principal....................................................... ..........................$185.00
SeniorEngineer.. .. ...................................... ..........................175.00
Senior Planner/Scientist............................................................150.00
AssociateEngineer. ........ .....................................................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 cast-plus-tan (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.
ErSVlronmerrtAf Lvnsultanta
envtronmant�coxnet
Exhibit C
ErMrumma WI Impact fcieri
26051 Yin Concha
Mleslon Vlajo,California 92691.5614
949.857.1195 949.837.3955 Fax
July 2,2012
Sean Crumby, P.E.
Assistant City ManagerMirector of Public Works
City of Seal Beach
211 Eighth Street
Seal Beach, California 90740
Change Order No. 1 CEDA/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 DEIR/S 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 ManagedDirector of Public Works
San Diego Freeway Improvement Project
Change Order No. 1
July 2, 2012
Page 2
Change Order No.1
Task C01.1: 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 mate. Any similar work effort would be completed as part of Task C01.4 (Future
On-Call Services) below.
Task CO1.3: Technical Comments. The DEIWS 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 C01.4: 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 tabor 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
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 'but 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 Ordar No.1
July 2, 2012
Page 3
Unless otherwise amended,the "limitation"outlined in our January 18, 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,
qe.-Wl
Peter Lewandowski
Principal
�ix h iwi° .
26051 Via Concha
Mission 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" (DEIRIS) for the proposed 1-
405 f=reeway 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 Report/Environmental Impact Statement -- San
Diego Freeway Improvement Project, Orange and Los Angeles Counties, California, SCH
#2009091001"(Recirculated DEIRIS).
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 DEIRIS 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.
favironmental(oniultanh
eaviroaaientg ouet
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,
Peter Lewandowski
Principal
AMENDMENT TO PROFESSIONAL SERVICES
AGREEMENT
between
SEAJ
9POR4
7
NT
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 lm act 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 CONSULT
Jill Ingram, Ci l' nager
Name: �
fC L-6JA+�OPidSr
�
Attest:
Title: f�wc.-f/K--
By:
Li da Devine, City Clerk
Name:
Approved as to Form:
Title:
By:
Quinn M. Barro%u, City Attorney
3of3
PROFESSIONAL SERVICES AGREEMENT
Between
vo
0 7 N,
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 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").
S7296-000111236808v1.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.
2of9
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
S7296-000111236808v 1.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
S 7296-000111236808v 1.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 ANIII, 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
5of9
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%1236808v1.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 Ya
CONSULT
A
B , By
lil Ingram, City ` a ages
Name:
Attest: Its:
By. By:
Linda Devi , City erk
Name:
Approved as to Form: Its:
By:
c'duinn Barrow, City orney
9of9
s7296-0001 kl 236e08vi.doc
ErMrommmtal In ipaa Soften
w 26051 Via Concha
Mi661on Vlejo,California 92691.5614
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 (1405) between
State Route 73 (SR-73) and Interstate 605 (I-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 EISIEIR 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/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 suboonsultants, 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 CEQAINEPA 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
Lanfttimm al lmpac�Sdmea
26051 Via Concha
Mission Viejo,Callfornla 92691.5614
949.557.1195 949.837.3935 Fax
ENVIRONMENTAL IMPACT SCIENCES
STANDARD RATE SCHEDULE
(January 1,2012)
l Rates
Professional
Principal...................................................................................$185.00
SeniorEngineer.........................................................................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
Word Processor...........................................................................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.
EnWrotunental CatleuttanW
anvWnmentOmmet