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HomeMy WebLinkAboutMission Trail EPD Proposal Urban Planning ■ Due Diligence ■ Entitlements ■ CEQA/NEPA ■ Development Services ■ Management ■ Public Outreach 2355 Main Street, Suite 100 ■ Irvine, Calif. 92614 949.794.1180 ■ info@epdsolutions.com Submitted via email. March 16, 2022 Damaris Abraham City of Lake Elsinore dabraham@lake-elsinore.org RE: Proposal for Environmental Analysis and CEQA Compliance Management on the proposed 191- Unit Residential Community on Mission Trail, Lake Elsinore Dear Ms. Abraham: We are thrilled to have another opportunity to work with you on the CEQA compliance efforts for the proposed 191-unit residential community on Mission Trail. Below is our proposed scope of work based on our discussion related to a similar project in terms being consistent with a Specific Plan and therefore potentially qualify for tiering off the associated EIR. PROJECT UNDERSTANDING The 18-acre project site (17.2 net acres) is west of the I-15 and shares an easterly boundary with Mission Trial, which provides access to the site. The project site is rectangular in shape and currently undeveloped. The site is east of the Lake Elsinore Motorsports Park and is sandwiched by vacant land on the south and north. Commercial and industrial uses are located further south. Residential, commercial and industrial uses are to the east. The project site is designated in the General Plan as East Lake Specific Plan and zoned Mixed-Use Overlay. The proposed project includes 191 2-story single-family detached homes in a gated community with a community park with a sport court, children’s play equipment, pool, spa and bathroom building. With the available information provided to-date, the proposed project would be consistent with the site’s General Plan and Specific Plan designations. PROPOSED ENVIRONMENTAL REVIEW Due to the project’s compliance with the General Plan and Specific Plan, we anticipate the appropriate CEQA compliance approach for the project would be pursuant to State Guidelines Section 15183, which is a CEQA streamlining provision available to projects that are consistent with a community plan (such as the City’s General Plan) previously analyzed under an approved environmental document. For purposes of this proposal, this is assumed to be the case, which will be validated by EPD through a thorough review of potential impacts of the project using an Initial Study. The Initial Study will guide the appropriate CEQA path and confirm the project can be streamlined under Section 15183. In the event Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 2 impacts of the project are determined to significant and peculiar to the project or its site compared to what was previously approved under the applicable General Plan and East Lake Specific Plan environmental document, a Mitigated Negative Declaration (MND) or Environmental Impact Report (EIR) would be prepared if deemed appropriate. SCOPE OF WORK 1. Project Initiation and Project Description 2. Technical Studies a. Peer Review of Applicant Prepared Studies b. Air Quality and Greenhouse Gas Emissions Analysis c. Energy Analysis d. Noise Impact Analysis e. Cultural and Paleontological Resources Assessment 3. Initial Study 4. Notice of Exemption (NOE) 5. CEQA Project Management 1. Project Initiation and Project Description As part of this task, EPD will review the project’s entitlement application submittal package, the City’s General Plan and Municipal Code, and other relevant documents. EPD will then prepare a detailed project description for the project. As you are likely aware, one of the keys to successful CEQA compliance is a clear definition of the project and its components. Prior to initiating technical studies, the project description must be complete, comprehensive, and stable and finite in order to ensure the studies analyze potential impacts accurately and fully. EPD will identify any additional information needed to develop a thorough and complete project description. EPD will also confer with the City and project team during this early process to discuss the potential environmental impacts of the proposed project. As part of this initial review, EPD will confer with the team to determine if any issues might come up related to the thresholds of significance Subsequent to this initial analysis, EPD will discuss with the team the results and identify any potential issues relative to the impact analysis and mitigation measures. 2. Technical Studies The following technical studies are proposed to be prepared in support of the IS.  Air Quality and Greenhouse Gas Emissions Analysis  Energy Analysis  Noise Impact Analysis  Cultural and Paleontological Resources Assessment Certain technical studies that are required for the project are expected to be contracted through the applicant and are therefore excluded from our scope. These studies include the Water Quality Management Plan (WQMP), hydrology study, biological study, and geotechnical study. In addition, we anticipate being provided a Phase I Environmental Site Assessment (ESA). Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 3 2.1. CEQA Adequacy Review of Applicant Prepared Studies EPD will review the Applicant-prepared biological study, hydrology study, WQMP, Geotechnical and Phase I ESA reports for an accurate and consistent project description, adequacy in responding to applicable CEQA impact questions, use of appropriate thresholds, and identification of appropriate mitigation, as necessary. For efficiency, we will provide comments and revisions within the Word files of the technical studies and use “track changes” and commenting features in the review of documents. Where Word files are not available, we will comment within the PDF files. Comments will be summarized in a peer-review memo. 2.2. Air Quality and Greenhouse Gas Emissions Analysis Air Quality Analysis/Gasoline Service Station Screening-Level Health Risk Assessment The proposed project is located within the jurisdiction of the South Coast Air Quality Management District (SCAQMD). The following scope of work serves to meet the City’s and SCAQMD’s requirements for preparation of a CEQA Air Quality and Greenhouse Gas Analysis. Air Quality • Evaluate the existing conditions of the project study area; this will include gathering background air quality data, local wind patterns in the study area and identifying applicable rules, plans and thresholds of significance. • Identify construction-related air quality impacts from associated construction activities at the project site which may include import/export of fill dirt, mass grading, building construction, paving, concrete pouring, etc. • Evaluate operational emissions for the proposed project, based upon trip generation projections provided as part of the traffic study. Peak hour trips will be used along with estimates of the types of trips generated and average travel speeds to estimate daily emissions generated by the project. In addition, emissions from other operational sources such as heaters, air conditioners, water heaters, consumer products, and lawn care equipment will also be considered. • Perform a screening-level CO Hot Spot analysis of future conditions at key intersections located in the project study area will be prepared. It is anticipated that a qualitative discussion on CO Hotspot potential and rationale as to why more detailed modeling of CO Hotspot analysis is not required. • Perform Construction Localized Significance Threshold (LST) analysis as recommended by the South Coast Air Quality Management District (SCAQMD) for construction and operational activity. The scope of work includes a screening-level health risk assessment due to the gasoline service station proposed on-site. The screening assessment will utilize published guidance from the California Air Pollution Control Officers Association (CAPCOA) in their Gasoline Service Station Industrywide Risk Assessment Guidelines. No dispersion modeling is anticipated to be required. • Evaluate potential odor impacts resulting from the proposed project. Identify applicable mitigation measures and regulatory requirements that the project must comply with to minimize odors. For purposes of this evaluation a qualitative assessment of odors and odor controls is expected. • Qualitatively discuss cumulative impacts within the context of planned and foreseeable projects for short-term construction and long-term operational activity. A “list” approach per CEQA will be utilized when discussing cumulative impacts using the list of cumulative projects identified in the traffic report. Since the basin is in non-attainment the determination of significance will likely be based on whether or not the Project results in a substantial incremental increase. Greenhouse Gas Emissions Analysis • Evaluate applicable federal and state regulatory requirements (i.e., AB32, SCAQMD, CARB thresholds). Qualitatively discuss the effects of GHG emissions on regional air quality. Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 4 • Evaluate applicable GHG emissions associated with heavy-duty construction equipment combustion that will likely occur during the various phases of construction. Data available from the project team and technical air quality analysis will be utilized in characterizing GHG-generating activities. • Evaluate operational GHG emissions for the proposed project which will include emissions from mobile sources, heaters, air conditioners, water heaters, consumer products, cargo handling equipment (CHE), and lawn care equipment will also be considered. • The emissions evaluation for short-term construction, long-term mobile source, and long-term stationary source activity will consider project design, and mitigation measures that have the potential to reduce GHG emissions. • Evaluate project significance based on an applicable Climate Action Plan or direction provided by the Project CEQA preparer and/or the lead agency. • Identify and recommend mitigation measures that are feasible to implement and that will reduce any potential impacts to the maximum extent possible. Prepare a greenhouse gas report that incorporates the findings and all supporting calculations. 2.3. Energy Analysis We will prepare energy calculations associated with electricity, natural gas, and transportation fuels in a summary table for inclusion in the CEQA document. 2.4. Noise Impact Analysis • Identify and review applicable, Federal, State and Local Noise criteria. This includes the City Noise Element and Municipal Code to determine appropriate noise standards and significance criteria. • Collect long-term 24-hour ambient noise level measurements in the project study area at up to six locations to quantify the existing noise environment. All noise level measurement equipment will satisfy American National Standards Institute (ANSI) standard specifications for sound level meters ANSI S1.4-2014/IEC 61672-1:2013. The noise level measurements will be collected consistent with the criteria outlined in the Municipal Code. Briefly describe the ambient noise conditions in the Project study area. • Collect reference noise level measurements to represent the expected stationary source impacts associated with the proposed Project land uses including the planned car wash. • Evaluate the potential stationary source noise impacts associated with the operation of the proposed Project and recommend measures to reduce the potential noise impacts to any nearby noise-sensitive uses. Provide a detailed construction noise and vibration analysis for each stage of construction using reference noise level measurements of similar activities. Summarize the results of the study in a noise impact analysis report addressing the potential impacts associated with the Project and provide the appropriate measures to reduce the impacts to levels of less than significant. 2.5. Cultural and Paleontological Resources Assessment Brian F. Smith & Associates will prepare a cultural and paleontological resources assessment for the project site. • Cultural Resources Background Research – the cultural specialist will request an updated cultural resources records search of the project area from the South Central Coastal Information Center (SCCIC) at California State University, Fullerton and the Native American Heritage Commission (NAHC). The results of the records searches will identify previous studies and previously registered cultural resources within or near the property. The receipt of records searches from the SCCIC may Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 5 be delayed due to COVID-19 restrictions. If necessary, the survey and report will be completed with a provision that the record searches will be forwarded to the City upon receipt. • The property will be surveyed by a qualified archaeologist. Should any cultural resources be identified during the survey, either historic or prehistoric, subsequent significance evaluations may be required. Any additional efforts required will be presented in a subsequent proposal document. • A paleontological review of available research will be completed to determine if fossil resources exist within the project area and which could require mitigation measures as part of any future development. • Two technical reports will be prepared for use in the CEQA environmental review process. The archaeological report will provide the results of the previous studies, the updated record searches, data from field survey, and NAHC consultation. The paleontological assessment will provide results of the research of fossil records and projections of the potential to encounter significant fossil deposits at this location. For the purposes of this proposal, we will assume that the cultural resources report will be negative. If cultural resources, either historic or prehistoric, are identified on the property as a result of the records information or the field inspection, CEQA protocol will require that the resources be evaluated for significance and potential impacts analyzed. 2.6. Traffic Impact Analysis The following scope is based on buildout of up to 191 single-family detached homes. Based on a preliminary analysis of the project trip generation using the ITE rates for Single Family Detached Housing, the project would generate approximately 1,801 daily trips, 134 AM peak hour and 180 PM total peak hour vehicle trips. As the number of peak hour trips is greater than 100, a LOS analysis would be required. The following scope of work is based on the requirements of the City of Lake Elsinore, Traffic Impact Analysis Preparation Guide (TIA Guidelines) It is understood the scope of the project may change and changes to the unit mix or count could result in a change in the number of intersections analyzed. Our budget includes a per-intersection fee if added analysis is required by the City. EPD will complete the TIA according to the tasks outlined below. The scope of work will be adjusted as required when a site plan showing product types and proposed density is provided. 2.6.1. Scoping Agreement. EPD will complete the City’s Scoping Agreement for Traffic Impact Study and submit it for City staff review within two weeks of receipt of site plans showing unit types and counts and proposed access points. EPD will work with City staff to obtain approval of the scope outlined below prior to proceeding with the TIA. During this process, EPD will request a list of planned roadway improvements and cumulative development projects in the vicinity of the project study area. In addition, EPD will request signal timing plans for study intersections from the City of Lake Elsinore for use in the existing conditions analysis. 2.6.2. Existing Roadway Network. EPD will document conditions of the surrounding roadway network, including speed limits, number of travel lanes, and non-motorized and transit facilities. Traffic control, channelization and other relevant characteristics will be documented at study intersections as well. 2.6.3. Existing Traffic Operations. EPD will contract with a qualified traffic data collection firm to collect existing traffic volumes at all study area intersections. It is anticipated that up to 7 intersections would be included in the study area; an additional budget will be required if the Scoping Agreement approved by the City requires additional intersections. Traffic counts will be charged as an expense. EPD will calculate existing AM and PM peak hour levels of service (LOS) at study intersections. Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 6 2.6.4. Project Trip Generation, Distribution and Assignment. Daily and weekday AM and PM peak hour trip generation will be estimated based on the size of the project and information published by the ITE in Trip Generation, 11th Edition. Project trips will be distributed to the study intersections and surrounding roadway network using observed patterns of travel as identified in the traffic count data as well as logical paths of travel to and from the site. The project trip generation will be distributed to study area intersections and added to baseline and future scenarios. 2.6.5. Project Completion and Cumulative Traffic Volumes. Project Completion AM and PM peak hour traffic volumes will be estimated at study intersections based on a growth rate applied to existing traffic volumes plus project trips. The Cumulative scenario will be estimated using Project Completion volumes plus approved and pending development projects. EPD will contact the City of Lake Elsinore to identify cumulative projects that would add traffic to the project area. 2.6.6. Project Impact Analysis. Levels of service at the study intersections and roadway segments will be calculated for the Existing, Project Completion, and Cumulative scenarios. Project-generated impacts will be identified by using the City’s thresholds for Level of Service stated in their TIA guidelines. The TIA will also analyze Traffic Signal Warrants for all unsignalized intersections that operate with unsatisfactory LOS. The TIA will also include a Safety and Operational Analysis as described in the City’s TIA Guidelines. 2.6.7. VMT Analysis. Effective July 1, 2020, the evaluation of transportation impacts for CEQA purposes requires the assessment of vehicle miles traveled (VMT) rather than level of service (LOS). As such, a VMT analysis will be required for the project. The City of Lake Elsinore has VMT Analysis Guidelines that EPD will use for the VMT analysis. A preliminary analysis using the Fehr and Peers WRCOG VMT screening tool shows the project does not screen out based on low VMT; in addition, the project proposes a land use change, a complete VMT analysis would be required. The analysis will be consistent with the City’s guidelines using the RIVCOM model. The model will be used to determine the project net VMT per service population with the average VMT for Lake Elsinore for both the Existing Plus Project Scenario and RTP/SCS Horizon year. Any VMT impacts will be mitigated using strategies recommended by the Governor’s office of Planning and Research (OPR) and as shown in CAPCOA’s Quantifying Greenhouse Gas Mitigation Measures, or other measures in consultation with City staff. 2.6.8. Mitigation Measures. If potentially significant traffic impacts are anticipated, EPD will identify mitigation measures that would reduce or off-set these impacts. Project fair-share for cumulative impacts will be calculated and identified in the study. 2.6.9. Documentation of Analysis and Findings. A draft TIA will be prepared documenting all analyses, findings, and conclusions. Upon review by the project team and/or City, EPD will revise the TIA and provide the revised TIA for City review. 3. Initial Study This scope of work assumes an Initial Study (IS) in support of a Section 15183 will be sufficient to achieve CEQA compliance. EPD will work with the City, and the applicant, and their design team, as authorized by the City, to mitigate all impacts to below a level of significance; however, if an impact cannot be mitigated adequately, it could be elevated to an IS/MND or deemed significant and unavoidable by the City, which would trigger the need for an Environmental Impact Report (EIR). We will advise the project team immediately if we find any impacts could reach this severity. Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 7 3.1. Administrative Draft IS EPD will prepare an Initial Study consistent with the State CEQA Guidelines and the City’s local CEQA guidelines. We anticipate the Initial Study will be used to support the use of a Section 15183 determination. One round of review is assumed. 3.2. Public Review Draft IS Based on comments from the project team, a Public Review draft will be submitted to the City for review. Project team and City comments will be incorporated into an updated document. One round of review per entity is expected. 3.3. Response to Comments Although not required by CEQA, at the City’s request, EPD will prepare responses to comments received by interested parties and agencies on the IS and will assist the City in preparation for public hearings. This scope assumes 11 hours of professional staff time. If a large volume of letters is received requiring extensive responses, EPD will advise the City and costs will be extra to contract. 4. Notice of Exemption EPD will prepare a Notice of Exemption (NOE) for the project using the Office of Public Resource standard NOE form. EPD will be responsible for filing the NOE with the State Clearinghouse and with the County. 5. Meetings, Hearings, and CEQA Project Management EPD’s CEQA project manager will coordinate closely with City staff to assure that the IS and associated documents are legally defensible, accurate, and useful to decision makers considering the approval of the project. The project manager will also coordinate with City staff throughout the process not only to streamline the CEQA process, but to avoid or anticipate any changes that could result in delays. To effectively manage the costs of the project, EPD will attend bi-monthly conference calls (briefings) to update the City on upcoming deliverables and discuss any potential issues that may impact the scope of work. EPD will draft agendas in advance of these meetings and deliver minutes via email to the entire project team. The minutes will identify action items and the responsible party to implement said action item. In addition to standing meetings, EPD will be available to the project team and City staff to answer questions, address concerns, or to clarify issues as they arise. The project manager will be responsible for managing (1) task scheduling and assignment, management of resources, monitoring of costs, and schedule adherence; (2) consultation and coordination with local and state agencies relative to the environmental document and the environmental review process; (3) coordination and communications with the project team and City to ensure that City policies, procedures, and any applicable codes are complied with and, where applicable, are incorporated into the CEQA document; and (4) ensuring that the environmental review process and the CEQA document satisfy the statutes and guidelines of CEQA and CEQA procedures. This scope of work assumes attendance at one public hearing by the project manager and the principal in charge and project management of 2 hours per month of the 3-4-month duration of the CEQA portion of the project. Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 8 FEES & EXPENSES EPD proposes the following labor fees. Tasks 1 through 4 will be billed as fixed fees; Task 5 will be billed on a time-and-materials basis, with the balance billed following filing of the NOE. Proposed Work Scope Tasks Proposed Fee Task 1: Project Initiation and Project Description $5,100 Project Initiation $2,100 Project Description $3,000 Task 2: Technical Studies $76,345 2.1: Peer Review of Applicant Studies $4,025 2.2: Air Quality & GHG Emissions Analysis $13,500 2.3: Energy Analysis $2,340 2.4: Noise Impact Analysis $10,530 2.5: Cultural/Paleontological Resources Assessment $6,600 2.6: Traffic Impact Analysis (LOS & VMT Analysis) $32,750 Task 3. Initial Study $27,900 3.1: Administrative Draft $19,500 3.2: Public Review Draft $5,725 3.3: Response to Comments $2,675 Task 4. Notice of Exemption $1,050 Task 5. CEQA Project Management $10,300 Management $6,100 Meetings $4,200 Estimated Fees & Expenses $6,000 TOTAL (Without Estimated Expenses) $120,695 TOTAL (With Estimated Expenses) $126,695 The reimbursable Estimated Expenses (mileage, records searches reprographics, shipping) are an estimate only. This budget does not include direct expenses, processing or application fees, or deposits for environmental consultants contracted directly by the client. Expenses would be billed per the attached Provisions of Agreement. Our cost estimate is based on our scope of services and schedule, and the following assumptions:  The cost estimate is valid for up to 180 days from the date of submittal/opening, after which it may be subject to revision.  Costs have been allocated to tasks to determine the total budget. EPD may reallocate costs among tasks, as needed, as long as the total budget is not exceeded.  Additional review cycles or additional versions of administrative drafts of any documents beyond the assumptions contained within the scope of work will constitute additional work. The budget is based on completion of work within a maximum 6-month schedule. If a delay of 90 days or more occurs as a result of circumstances beyond control we reserve the right to adjust our budget to account for increased labor rates and other costs. Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 9 Thank you again for the opportunity to work on this project. Should you have any questions, please do not hesitate to contact me at (949) 794-1183 or konnie@epdsolutions.com. Sincerely, EPD Solutions, Inc. Konnie Dobreva, JD Vice President of Environmental Planning Enclosure (1) To begin work, EPD requires this agreement be signed by the client below. Agreed to by: __________________________ _____________ Signature Date ________________________________________ Printed Name and Title Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 10 PROVISIONS OF AGREEMENT The City of Lake Elsinore (“Client”) and Environment | Planning | Development Solutions, Inc. (“Consultant”) agree that the following Provisions of Agreement (“Provisions”) shall be part of the agreement to Client dated March 16, 2022 for the services described therein (“Project”) to which these Provisions are attached and both shall be considered and constitute the “Agreement” referenced herein. I. DEFINITIONS: 1. Client and Consultant agree to cooperate with each other in order to fulfill their responsibilities and obligations under this Agreement. Both Client and Consultant shall endeavor to maintain good working relationships among members of the project team. 2. Ownership of Instruments of Service: All documents prepared or furnished by Consultant pursuant to this Agreement are Consultant’s Instruments of Service, have been prepared for use solely with respect to this Project, and Consultant shall retain an ownership and property interest therein. Consultant grants Client a license to use Consultant’s Instruments of Service for the purpose of constructing, occupying and maintaining the Project. Reuse or modification of any such documents by Client, without Consultant’s written permission, shall be at Client’s sole risk, and Client agrees to indemnify and hold Consultant harmless from all claims, damages and expenses, including attorneys’ fees, arising out of such reuse by Client or by others acting through Client. Client acknowledges that Consultant’s Instruments of Service may be stored and delivered to Client and others in electronic files (“Data”), and that anomalies and errors can be introduced into the Data when it is transferred or used in conjunction with incompatible computer equipment or software. Consultant’s Data is being furnished "as is" and Consultant shall have no duty to modify or update the Data unless a part of the approved Project. Consultant reserves the right to retain an archival paper or electronic copy of the Data delivered to Client or the general contractor which shall be referred to and shall be conclusive proof and govern in all disputes over the form or content of the Data furnished by Consultant. If Consultant is not paid in full for all its services, Client shall, upon demand, return Consultant and Consultant’s sub-consultants Instruments of Service and refrain from using Instruments of Service for any purpose whatsoever. II. CONSULTANTS RESPONSIBILITIES: 1. Consultant will perform its professional services in the manner identified in the Agreement for the identified fixed fees and budgeted items, excluding direct expenses. Services provided on a time and materials basis or additional services will be charged based on the following hourly billing rates: List of Standard Hourly Rates Position Hourly Rate President/Principal $275 - $300 Vice President of: Planning; Environmental Planning; Development; Transportation Planning; Construction Management; Engineering; Design $250 - $275 Senior Director of: Planning; Environmental Planning; Development; Transportation Planning; Construction Management; Engineering; Design $240 - $260 Director of: Planning; Environmental Planning; Development; Transportation Planning; Construction Management; Engineering; Design $230 - $250 Senior: Project Manager; Planner; Transportation Planner; Engineer; Environmental Planner; Associate $195 - $230 Project Manager; Associate Engineer $175 - $195 Associate: Planner; Environmental Planner; Transportation Planner $160 - $175 Assistant: Project Manager; Environmental Planner; Transportation Planner; Project Planner; Engineer $150 - $160 Project Coordinator; GIS Analyst; Drafter $135 - $150 Support Staff $85 - $135 Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 11 Once the maximum fee is reached, Consultant will stop work unless Consultant and Client agree to increase the maximum fee amount or Client agrees to pay for additional services in accordance with Consultant's billing rates identified herein. This rate schedule is subject to change due to the granting of wage increases and/or other employer benefits to field or office employees during the lifetime of this agreement. 2. Consultant will complete professional services described in this Agreement as expeditiously as is consistent with, and limited to, Consultant’s standard of care. 3. This Agreement comprises the entire and integrated agreement between Client and Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by an authorized representative of both Client and Consultant. 4. If any of the provisions of this Agreement shall be finally determined to be invalid or unenforceable in whole or in part, the remaining provisions hereof shall remain in full force and effect and be binding upon Client and Consultant hereto. Client and Consultant agree to reform this Agreement to replace any such invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the intention of the stricken provision. 5. If the scope of services includes Consultant's assistance in applying for governmental permits or approvals, Consultant's assistance shall not constitute a representation, warranty or guarantee that such permits or approvals will be acted upon favorably by any governmental agency. 6. Governing Law: The laws of the state in which the Project is located shall govern the validity and interpretation of this Agreement. 7. Construction Observation: Consultant shall visit the project at intervals appropriate in the Consultant’s professional opinion, during construction to become generally familiar with the progress and quality of contractor’s work and to determine if the work is proceeding in general accordance with the Contract Documents. Client has not retained Consultant to make detailed inspections or to provide exhaustive or continuous project review and observation services. Consultant does not guarantee the performance of, and shall have no responsibility for, the acts or omissions of any contractor, subcontractor, supplier or any other entity furnishing materials or performing any work on the project. If Client desires more extensive project observation or full-time project representation, Client shall request such services be provided by Consultant as Additional Services in accordance with the terms of this Agreement. It is agreed that Consultant’s services under this Agreement do not include project observation, review of contractor’s performance or any other construction phase services. Client assumes all responsibility for all construction phase services including, but not limited to: a. Submittal review and approval b. Contract document interpretation c. Site observations d. Change order review and approval e. Review and approval of contractor payment applications f. Certificates of substantial and final completion g. Preparation and disposition of punch lists h. Responding to contractor requests for information i. Administration of any operational and maintenance training including collection operational and training manuals Client waives any claims against Consultant that may be in any way connected with Client’s decision not to retain Consultant to performance construction phase services. Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Consultant, its officers, directors, employees and sub-consultants (collectively, Consultant) against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, arising out of or in any way connected with the performance of such services by other persons Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 12 or entities and from any and all claims arising from modifications, clarifications, interpretations, adjustments or changes made to Contract Documents to reflect changed field or other conditions. Client, Client’s contractors or subcontractors, or anyone for whom Client is legally liable shall assume full responsibility for the results of any changes made to the Contract Documents during construction. Client agrees to waive any claims against Consultant and to release Consultant from any liability arising directly or indirectly from such changes. Contract Documents Definition: The Contract Documents consist of the agreement, conditions of the contract (general, supplementary and other conditions), drawings, specifications, addenda issued prior to execution of the Agreement, other documents and modifications issued after execution of the Agreement. 8. Jobsite Safety: Consultant shall not supervise, direct or have control over general contractor or its subcontractors, regardless of tier, any employee or agent thereof (hereinafter “Contractor”) work. Consultant shall not have authority over or responsibility for the construction means, methods, techniques, sequences or procedures or for safety precautions and programs in connection with the work of Contractor. Consultant does not guarantee the performance of the construction contract by Contractor and does not assume responsibility for Contractor’s failure to furnish and perform its work in accordance with the Construction Documents. III. CLIENT’S RESPONSIBILITIES 1. Client acknowledges that its right to utilize reports and other documents of Consultant provided pursuant to this Agreement will continue only so long as Client is not in default, pursuant to the terms and conditions of this Agreement, and Client has performed all its obligations under this Agreement, including but not limited to payment for services rendered. 2. Client further agrees to waive all claims against Consultant resulting in any way from any unauthorized changes, use or reuse of the electronic files for any other project by anyone other than Consultant. 3. All fees and other charges due Consultant will be billed monthly and shall be due at the time of billing unless specified otherwise in this Agreement. 4. Consultant will provide Client with monthly invoices for services rendered and costs advanced. Client agrees that all billings from Consultant to Client are correct and binding on Client unless Client, within ten (10) days from the date of receipt of such billing, notifies Consultant in writing of alleged inaccuracies, discrepancies, or errors in billing. 5. Client agrees to pay a monthly late payment charge, which will be the lesser of one and one-half percent (1-1/2%) per month or a monthly charge not to exceed the maximum legal rate, which will be applied to any unpaid balance commencing thirty (30) days after the date of the billing. If Client notes any inaccuracies, discrepancies, or errors in billing pursuant to Article III, late fees shall only apply beginning on the thirty-one (31) days after the inaccuracies, discrepancies, or errors have been corrected. IV. OWNERSHIP AND USE OF DOCUMENTS AND DATA 1. Prints or document printing will be billed directly to Client by the print company at no additional Consultant administrative cost or billed by Consultant at cost plus fifteen percent (15%). All other reimbursable expenditures will be invoiced at cost plus fifteen percent (15%) handling fee. Sub-consultant costs will be billed at cost plus twenty-five percent (25%). Mileage will be billed at the standard Federal rate as provided for under Internal Revenue code. 2. Standard of Care: Consultant’s services shall be provided consistent with and limited to the standard of care applicable to such services, which is that Consultant shall provide its services consistent with the professional skill and care ordinarily provided by members of the same profession practicing in the same or similar locality under the same or similar circumstances. 3. Survival: Notwithstanding completion or termination of this Agreement for any reason, all rights, duties and obligations of the parties to this Agreement shall survive such completion or termination and remain in full force and effect until fulfilled hereunder and termination of this Agreement. Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 13 V. RISK ALLOCATION 1. Waiver of Consequential Damages: Notwithstanding any other provisions in this Agreement, Client and Consultant each waive consequential damages against the other party. Notwithstanding anything to the contrary set forth herein, the foregoing waiver shall not apply if the consequential damages are covered by Consultant’s insurance policy. 2. Indemnity: Consultant and Client each agrees to indemnify and hold harmless the other (Indemnitor and Indemnitee), and their respective principals, officers, directors, partners, employees, and any other entity or person for which Indemnitor and Indemnitee is legally liable, from and against any damages, losses, liabilities, judgments, settlements, expenses, and costs (including reasonable and necessary attorneys' fees, costs and expenses recoverable under applicable law), that Indemnitee incurs as a result of third party claims, demands, actions, suits or matters connected therewith, to the extent caused by the negligent acts, errors or omissions, or willful misconduct of Indemnitor in the performance of services under this Agreement and any other entity or person for which the Indemnitor is legally liable. Notwithstanding the foregoing, if Indemnitor’s obligation to indemnify arises out of Indemnitor’s performance of services for the Project as a “design professional,” as that term is defined in California Civil Code Section 2782.8, Indemnitor’s indemnity obligation shall be limited in accordance with the provisions of Section 2782.8 as it was in effect as of the date of this Agreement. 3. Waiver of Personal Liability: It is intended by the parties to this Agreement that Consultant or its sub- consultant(s) services in connection with this Project shall not subject Consultant’s or its sub-consultant(s) individual employees, officers or directors to any personal legal exposure for the risks associated with the Project or this Agreement, or any Addenda. Therefore, and notwithstanding anything to the contrary contained herein, Client agrees that as Client’s sole and exclusive remedy, any claim, demand or suit shall be directed and/or asserted only against Consultant, a California corporation or its incorporated sub- consultant(s), and not against any of Consultant’s or its sub-consultant(s) individual employees, officers or directors. 4. Consultant will be legally liable for only the services expressly undertaken pursuant to this Agreement, and not otherwise. Consultant will not be legally liable for the providing of, or the failure to provide other services, even if information from others is incorporated into Consultant's instruments of service for ease of reference or otherwise. Further, and without limitation, Consultant will not be responsible for delays or other matters beyond its reasonable control; for inaccurate information provided to it by Client or other reasonably reliable sources; for site conditions of which it was not informed; for hazardous materials or toxic substances at the Project site; for construction means, methods, techniques, sequences or procedures, including without limitation excavation, shoring, demolition or erection procedures or construction safety precautions and programs; for the timeliness or quality of contractor performance or for the failure of any contractor to perform work in accordance with the Project’s construction documents; or for actions or inaction of third parties including other consultants, utility companies and governmental or quasi-governmental agencies. 5. Limitation of Liability: To the extent permitted by law, the total liability, in the aggregate, of Consultant and its employees, officers, directors, members, partners, agents, and consultants, to Client, its subsidiary and/or affiliated companies and its respective employees, officers, directors, members, partners, agents and anyone claiming by, through, or under Client, for any and all injuries, claims, losses, expenses, or damages whatsoever arising out of, resulting from or in any way related to Consultant’s services, the Project or this Agreement, or any addenda, from any cause or causes whatsoever, including but not limited to, negligence, strict liability, breach of express or implied contract or warranty shall not exceed a total amount of $50,000. 6. Certification: Consultant shall not be required to execute certificates, consents or reliance letters that would require knowledge, services or responsibilities beyond the scope of this Agreement, and shall not be required to sign any documents that would result in Consultant having to certify the existence of conditions whose existence Consultant cannot reasonably ascertain beyond its standard of care. 7. Unauthorized Changes to Plans: In the event Client, Client's contractors or subcontractors or anyone for whom Client is legally liable, makes or permits any changes to be made to any reports, plans, specifications or other construction documents prepared by Consultant without obtaining Consultant's prior written consent, Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 14 Client agrees to waive any claim against Consultant and to release Consultant from any liability arising directly or indirectly from such changes. In addition, Client agrees (1) to the fullest extent permitted by law, to indemnify and hold harmless Consultant from any damages, liabilities or costs arising from such change, and (2) to include in any contracts for construction appropriate language that prohibits any contractor or subcontractors of any tier from making any changes or modifications to Consultant's construction documents without the prior written approval of Consultant and that further requires contractor to indemnify both Consultant and Client from any liability or cost arising from such changes made without such proper authorization. VI. INSURANCE 1. Insurance: Consultant shall purchase business insurance as follows: a. Professional Liability Insurance, with prior acts coverage sufficient to cover the services performed under this Agreement, and policy limits in an amount of $1,000,000 each claim and $2,000,000 annual policy period aggregate limit. Consultant specifically agrees, pursuant to this Agreement, to waive any rights of recovery against Client because of any payment made to the extent coverage is provided by the policy. b. Commercial General Liability Insurance (ISO CG 0001 0413), or another equivalent occurrence-based policy form, including coverage for bodily injury and property damage liability arising out of premises, operations, completed operations, and products in addition to advertising injury and personal injury liability coverage with a per project limit of not less than $1,000,000 each occurrence and $2,000,000 general aggregate limit. Consultant specifically agrees, pursuant to this Agreement, to the following: i. Additional Insured Provision: Shall include Client and Client-designated additional insured(s), to the extent coverage is provided by the policy, caused in whole or in part by Consultant or those acting on Consultant’s behalf. Additional insured coverage shall be provided by a combination of the CG2010 0413 and CG2037 0413 endorsements, or other comparable endorsement(s). ii. Primary and Non-Contributory Provision: The insurance provided to Client-designated additional insured(s) is primary to other insurance, which covers such additional insured as a named insured, and will not share with that other insurance to the extent coverage is provided by the policy. Primary and Non-contributory coverage shall be provided by CG2401 0413, or other comparable endorsement. iii. Waiver of Subrogation Provision: The insurance provided shall waive any rights of recovery against Client-designated additional insured(s), because of any payment made to the extent coverage is provided by the policy. Waiver of Subrogation provision shall be provided by CG2404 0509, or other comparable endorsement. c. Owned, Hired and Non-Owned Automobile Liability Insurance, with a limit of not less than $1,000,000 combined single limit for bodily injury and property damage liability arising out of the maintenance or use of any policy covered hired or non-owned automobile by Consultant or Consultant’s employees in the course of Consultant’s business. Consultant specifically agrees, pursuant to this Agreement, to the following: i. Additional Insured Provision: Shall include Client-designated additional insured(s), to the extent coverage is provided by the policy. ii. Waiver of Subrogation Provision: The insurance provided shall waive any rights of recovery against Client-designated additional insured(s), because of any payment made to the extent coverage is provided by the policy. d. Commercial Umbrella or Excess Liability Insurance, on a follow form basis with a limit of not less than $2,000,000 each occurrence and $2,000,000 general aggregate limit. Coverage shall be excess of commercial general liability, hired and non-owned automobile liability and employers’ liability with such coverage being concurrent with underlying insurance. Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 15 e. Workers’ Compensation Insurance, covering Consultant’s employees in accordance with statutory requirements of all jurisdiction(s) in which Services are being performed and Employers’ Liability Insurance in an amount of: Bodily Injury by Accident: $1,000,000 Each Accident Bodily Injury by Disease: $1,000,000 Policy Limit Bodily Injury by Disease: $1,000,000 Each Employee Consultant specifically agrees, pursuant to this Agreement, to the following: i. Waiver of Subrogation Provision: The insurance provided shall waive any rights of recovery against Client because of any payment made to the extent coverage is provided by the policy. Waiver of subrogation provision shall be provided by WC 04 03 06 (Ed. 4-84) from the Workers’ Compensation Insurance Rating Bureau or WC 00 03 13 (Ed. 4-84) from the National Council on Compensation Insurance, or other comparable endorsement. f. Certificates of Insurance: Prior to the commencement of this Agreement and upon the renewal of any of the insurance policies required hereunder, Consultant shall furnish certificates of insurance to Client as evidence of the insurance listed in Article VI. 2. Compliance with Code: Consultant shall exercise due and reasonable professional care in observing those federal, state, and local codes, standards, statutes, and regulations applicable at the time Consultant renders service. Notwithstanding the foregoing, Consultant has no responsibility for the discovery, presence, handling, removal, or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site. It is understood, however, that various codes and regulations are subject to varying and sometimes contradictory interpretation. Consultant shall exercise its professional skill and care consistent with, and limited to, the generally accepted standard of care to provide a design that complies with such regulations and codes. VII. DISPUTE RESOLUTION 1. (a) Except as provided in subdivisions (b) and (c), in an effort to resolve any conflicts that arise during the design or construction of the project or following completion of the project, Client and Consultant agree that all disputes between them arising out of or relating to this Agreement shall be submitted to nonbinding mediation, unless the parties mutually agree otherwise.(b) Subdivision (a) shall not preclude or limit Consultant's right to file an action for collection of fees if the amount in dispute is within the jurisdiction of the small claims court.(c) Subdivision (a) shall not preclude or limit Consultant's right to record. 2. Reliance on Information Provided by Others: Consultant shall be entitled to rely, without liability, on the completeness and accuracy of any and all information and data provided by Client, Client’s consultants and contractors, and information from public records, without the need for independent verification. Notwithstanding the foregoing, Consultant shall use its reasonable judgment and experience in determining whether such reliance is advisable. Client will also require its consultants and contractors to promptly notify Client if its consultants or contractor(s) observes or becomes aware of faults or defects in documents prepared by Consultant and Client will provide prompt written notice to Consultant. 3. Assignment: Neither Consultant nor Client may assign its obligations, interests, or delegate its duties under this Agreement (including monies that are due or monies that may be due) without prior written permission of the other party, which consent shall not be unreasonably withheld. 4. Severability: If any of the provisions of this Agreement shall be finally determined to be invalid or unenforceable in whole or in part, the remaining provisions hereof shall remain in full force and effect and be binding upon Consultant and Client hereto. Consultant and Client agree to reform this Agreement to replace any such invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the intention of the stricken provision. Proposal for CEQA Analysis for Mission Trail Residential Project March 16, 2022 Page 16 VIII. GENERAL PROVISIONS 1. Suspension of Services: Services may be suspended in the event of the following: a. A substantial failure of performance by either party. b. Any Client’s payment is more than 30 calendar days past due and Consultant shall have no liability to Client for delay or damage caused Client because of such suspension of services. c. Before resuming services, Client shall pay Consultant all sums due prior to such suspension and expenses incurred in the interruption and resumption of Consultant’s services. Consultant’s fees for the remaining services and the time schedules shall be equitably adjusted. d. If the Project is abandoned or suspended in whole or part for more than a cumulative ninety (90) calendar days or indefinitely postponed either party may terminate this Agreement and Consultant shall be paid for all services provided. e. If the Project is resumed after a delay of more than ninety (90) calendar days in the aggregate, Consultant shall be entitled to additional compensation for remobilization costs and the time schedules shall be equitably adjusted. 2. Termination: Either party may terminate this Agreement upon seven (7) working days' written notice to the other party, with or without cause. Said notice shall be deemed to be effective upon delivery to the other party. In the event of termination by Client, Consultant shall cease work at the time specified or if no time is specified, at the end of the day on the day receipt of the notice. Consultant shall be paid in full for services performed and expenses incurred to date as reasonably agreed upon by both parties. 3. Third-Party Beneficiaries: Client and Consultant agree that services performed by Consultant under this Agreement are solely for the benefit of Client, and are not intended by either Client or Consultant to benefit any other person or entity including, but not limited to, the Project contractor and/or any of its subcontractors. Any such benefit is purely incidental and such other person shall not be deemed a third- party beneficiary of this contract. 4. Governing Law: This Letter Agreement shall be governed in accordance with the laws of the state in which the Project is located, excepting those provisions dealing with conflicts of laws.