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HomeMy WebLinkAboutAgenda Report - November 18, 2020 C-09(! AGENDA ITEM ~ 9 CITY OF LODI COUNCIL COMMUNICATION TM AGENDA TITLE: Adopt Resolution Authorizing the City Manager to Execute a Professional Services Agreement for Environmental Review Documentation with Basecamp Environmental, Inc. of Lodi, and to Execute a Reimbursement Agreement with Celia Hung for Environmental Review Services by Basecamp Environmental, Inc. for the Proposed "Lake House" Project at 2201 West Turner Road MEETING DATE: November 18, 2020 PREPARED BY: Community Development Director RECOMMENDED ACTION: Adopt resolution authorizing City Manager to execute a Professional Services Agreement for environmental review documentation with Basecamp Environmental, Inc. of Lodi, and to execute a Reimbursement Agreement with Celia Hung for environmental review services by Basecamp Environmental, Inc. for the proposed "Lake House" project at 2201 West Turner Road BACKGROUND INFORMATION:The City of Lodi has received a land use application from Celia Hung at 2201 West Turner Road. The proposed project proposes the development of a hotel, retail space, and multi -family housing, and includes a General Plan Amendment, Rezone and master development plan for the property. The land use entitlement for this project will require the preparation of an environmental document consistent with the California Environmental Quality Act. The project applicant is required to pay for the preparation of environmental review, although BaseCamp will be under contract to the City and will work under the direction of City staff to prepare the environmental impact report. BaseCamp's scope of work is attached to this report. As part of the environmental review, staff has prepared a Professional Services Agreement for environmental review documentation with Basecamp Environmental, Inc. of Lodi, CA. The cost of the professional services is identified not to exceed $104,244.25, which includes $94,767.50 plus a 10% contingency of $9,467.75 to cover unforeseen additional work if needed. The Council may wish to note that the total value of the work to be done to prepare the EIR is approximately $22,290 higher than the contract amount. This work has already been done by BaseCamp and paid for directly by the applicant. As noted above, BaseCamp will now be under contract to the City, and all further work will be performed at the direction of City staff. APPROVED:qNTj_� - -Manager Adopt Reso for Turner Road — Celia Hung November 4, 2020 Page 2 of 2 Before BaseCamp is given a notice to proceed, the City will enter into a Reimbursement Agreement with Celia Hung, the project applicant, for the cost of the environmental review. This agreement ensures that all project costs are born by the applicant. FISCAL IMPACT: Not applicable. FUNDING AVAILABLE: None. All work under the contract will be funded by the applicant. Andrew Keys Andrew Keys Deputy City Manager/Internal Services Director John R Della Monica, r. Comm pity Development Dire for Attachment: BaseCamp Professional Services Agreement Reimbursement Agreement AGREEMENT FOR PROFESSIONAL SERVICES ARTICLE 1 PARTIES AND PURPOSE Section 1.1 Parties THIS AGREEMENT is entered into on , 2020, by and between the CITY OF LODI, a municipal corporation (hereinafter "CITY"), and BASECAMP ENVIRONMENTAL, INC (hereinafter "CONTRACTOR"). Section 1.2 Purpose CITY selected the CONTRACTOR to provide the services required in accordance with attached Scope of Services, Exhibit A, attached and incorporated by this reference. CITY wishes to enter into an agreement with CONTRACTOR for ENVIRONMENTAL IMPACT REPORT (EIR) FOR THE ZONING AND GENERAL PLAN AMENDMENTS FOR THE PROPOSED "LAKE HOUSE" PROJECT LOCATED AT 2201 WEST TURNER ROAD (hereinafter "Project") as set forth in the Scope of Services attached here as Exhibit A. CONTRACTOR acknowledges that it is qualified to provide such services to CITY. ARTICLE 2 SCOPE OF SERVICES Section 2.1 Scope of Services CONTRACTOR, for the benefit and at the direction of CITY, shall perform the Scope of Services as set forth in Exhibit A. Section 2.2 Time For Commencement and Completion of Work CONTRACTOR shall commence work pursuant to this Agreement, upon receipt of a written notice to proceed from CITY or on the date set forth in Section 2.6, whichever occurs first, and shall perform all services diligently and complete work under this Agreement based on a mutually agreed upon timeline or as otherwise designated in the Scope of Services. CONTRACTOR shall submit to CITY such reports, diagrams, drawings and other work products as may be designated in the Scope of Services. CONTRACTOR shall not be responsible for delays caused by the failure of CITY staff to provide required data or review documents within the appropriate time frames. 1 The review time by CITY and any other agencies involved in the project shall not be counted against CONTRACTOR's contract performance period. Also, any delays due to weather, vandalism, acts of God, etc., shall not be counted. CONTRACTOR shall remain in contact with reviewing agencies and make all efforts to review and return all comments. Section 2.3 Meetinqs CONTRACTOR shall attend meetings as may be set forth in the Scope of Services. Section 2.4 Staffing CONTRACTOR acknowledges that CITY has relied on CONTRACTOR's capabilities and on the qualifications of CONTRACTOR's principals and staff as identified in its proposal to CITY. The Scope of Services shall be performed by CONTRACTOR, unless agreed to otherwise by CITY in writing. CITY shall be notified by CONTRACTOR of any change of Project Manager and CITY is granted the right of approval of all original, additional and replacement personnel at CITY's sole discretion and shall be notified by CONTRACTOR of any changes of CONTRACTOR's project staff prior to any change. CONTRACTOR represents it is prepared to and can perform all services within the Scope of Services (Exhibit A) and is prepared to and can perform all services specified therein. CONTRACTOR represents that it has, or will have at the time this Agreement is executed, all licenses, permits, qualifications, insurance and approvals of whatsoever nature are legally required for CONTRACTOR to practice its profession, and that CONTRACTOR shall, at its own cost and expense, keep in effect during the life of this Agreement all such licenses, permits, qualifications, insurance and approvals, and shall indemnify, defend and hold harmless CITY against any costs associated with such licenses, permits, qualifications, insurance and approvals which may be imposed against CITY under this Agreement. Section 2.5 Subcontracts Unless prior written approval of CITY is obtained, CONTRACTOR shall not enter into any subcontract with any other party for purposes of providing any work or services covered by this Agreement. Section 2.6 Term 2 The term of this Agreement commences on January 1, 2019 and terminates upon the completion of the Scope of Services or on Dec. 31, 2021, whichever occurs first. ARTICLE 3 COMPENSATION Section 3.1 Compensation CONTRACTOR's compensation for all work under this Agreement shall conform to the provisions of the Fee Proposal, attached hereto as Exhibit B and incorporated by this reference. CONTRACTOR shall not undertake any work beyond the scope of this Agreement unless such additional work is approved in advance and in writing by CITY. Section 3.2 Method of Pavment CONTRACTOR shall submit invoices for completed work on a monthly basis, or as otherwise agreed, providing, without limitation, details as to amount of hours, individual performing said work, hourly rate, and indicating to what aspect of the Scope of Services said work is attributable. CONTRACTOR's compensation for all work under this Agreement shall not exceed the amount of the Fee Proposal. Section 3.3 Costs The Fee Proposal shall include all reimbursable costs required for the performance of the Scope of Services. Payment of additional reimbursable costs considered to be over and above those inherent in the original Scope of Services shall be approved in advanced and in writing, by CITY. Section 3.4 Auditing CITY reserves the right to periodically audit all charges made by CONTRACTOR to CITY for services under this Agreement. Upon request, CONTRACTOR agrees to furnish CITY, or a designated representative, with necessary information and assistance needed to conduct such an audit. CONTRACTOR agrees that CITY or its delegate will have the right to review, obtain and copy all records pertaining to performance of this Agreement. CONTRACTOR agrees to provide CITY or its delegate with any relevant information requested and shall permit CITY or its delegate access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with 3 this requirement. CONTRACTOR further agrees to maintain such records for a period of three (3) years after final payment under this Agreement. ARTICLE 4 MISCELLANEOUS PROVISIONS Section 4.1 Nondiscrimination In performing services under this Agreement, CONTRACTOR shall not discriminate in the employment of its employees or in the engagement of any sub CONTRACTOR on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, age, or any other criteria prohibited by law. Section 4.2 ADA Compliance In performing services under this Agreement, CONTRACTOR shall comply with the Americans with Disabilities Act (ADA) of 1990, and all amendments thereto, as well as all applicable regulations and guidelines issued pursuant to the ADA. Section 4.3 Indemnification and Responsibility for Damage CONTRACTOR to the fullest extent permitted by law, shall indemnify and hold harmless CITY, its elected and appointed officials, directors, officers, employees and volunteers from and against any claims, damages, losses, and expenses (including reasonable attorney's fees and costs), arising out of performance of the services to be performed under this Agreement, provided that any such claim, damage, loss, or expense is caused by the negligent acts, errors or omissions of CONTRACTOR, any subcontractor employed directly by CONTRACTOR, anyone directly or indirectly employed by any of them, or anyone for whose acts they may be liable, except those injuries or damages arising out of the active negligence, sole negligence, or sole willful misconduct of the City of Lodi, its elected and appointed officials, directors, officers, employees and volunteers. CITY may, at its election, conduct the defense or participate in the defense of any claim related in any way to this indemnification. If CITY chooses at its own election to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any claim related to this indemnification, CONTRACTOR shall pay all of the costs related thereto, including without limitation reasonable attorney fees and costs. The defense and indemnification obligations required by this Agreement are undertaken in addition to, and shall not in any way be limited by the insurance obligations set forth herein. Section 4.4 No Personal Liahili 4 Neither the City Council, nor any other officer or authorized assistant or agent or City employee shall be personally responsible for any liability arising under this Agreement. Section 4.5 Responsibility of CITY CITY shall not be held responsible for the care or protection of any material or parts of the work described in the Scope of Services prior to final acceptance by CITY, except as expressly provided herein. Section 4.6 Insurance Requirements for CONTRACTOR CONTRACTOR shall take out and maintain during the life of this Agreement, insurance coverage as set forth in Exhibit C attached hereto and incorporated by this reference. Section 4.7 Successors and Assigns CITY and CONTRACTOR each bind themselves, their partners, successors, assigns, and legal representatives to this Agreement without the written consent of the others. CONTRACTOR shall not assign or transfer any interest in this Agreement without the prior written consent of CITY. Consent to any such transfer shall be at the sole discretion of CITY. Section 4.8 Notices Any notice required to be given by the terms of this Agreement shall be in writing signed by an authorized representative of the sender and shall be deemed to have been given when the same is personally served or upon receipt by express or overnight delivery, postage prepaid, or three (3) days from the time of mailing if sent by first class or certified mail, postage prepaid, addressed to the respective parties as follows: To CITY: City of Lodi 221 West Pine Street P.O. Box 3006 Lodi, CA 95241-1910 Attn: John Della Monica To CONTRACTOR: BaseCamp Environmental, Inc. 115 S. School St., Suite 14 Lodi, CA 95240 Attn: Charlie Simpson Section 4.9 Cooperation of CITY CITY shall cooperate fully and in a timely manner in providing relevant information it has at its disposal relevant to the Scope of Services. Section 4.10 CONTRACTOR is Not an Employee of CITY 5 CONTRACTOR agrees that in undertaking the duties to be performed under this Agreement, it shall act as an independent contractor for and on behalf of CITY and not an employee of CITY. CITY shall not direct the work and means for accomplishment of the services and work to be performed hereunder. CITY, however, retains the right to require that work performed by CONTRACTOR meet specific standards without regard to the manner and means of accomplishment thereof. Section 4.11 Termination CITY may terminate this Agreement, with or without cause, by giving CONTRACTOR at least ten (10) days written notice. Where phases are anticipated within the Scope of Services, at which an intermediate decision is required concerning whether to proceed further, CITY may terminate at the conclusion of any such phase. Upon termination, CONTRACTOR shall be entitled to payment as set forth in the attached Exhibit B to the extent that the work has been performed. Upon termination, CONTRACTOR shall immediately suspend all work on the Project and deliver any documents or work in progress to CITY. However, CITY shall assume no liability for costs, expenses or lost profits resulting from services not completed or for contracts entered into by CONTRACTOR with third parties in reliance upon this Agreement. Section 4.12 Confidentiality CONTRACTOR agrees to maintain confidentiality of all work and work products produced under this Agreement, except to the extent otherwise required by law or permitted in writing by CITY. CITY agrees to maintain confidentiality of any documents owned by CONTRACTOR and clearly marked by CONTRACTOR as "Confidential" or "Proprietary", except to the extent otherwise required by law or permitted in writing by CONTRACTOR. CONTRACTOR acknowledges that CITY is subject to the California Public Records Act. Section 4.13 Applicable Law,_ Jurisdiction,_ Severability, and Attorney's Fees This Agreement shall be governed by the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be venued with the San Joaquin County Superior Court. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and void insofar as it is in conflict with said laws, but the remainder of this Agreement shall be in force and effect. In the event any dispute between the parties arises under or regarding this Agreement, the prevailing party in any litigation of the dispute shall be entitled to reasonable attorney's 6 fees from the party who does not prevail as determined by the San Joaquin County Superior Court. Section 4.14 City Business License Requirement CONTRACTOR acknowledges that Lodi Municipal Code Section 3,01.020 requires CONTRACTOR to have a city business license and CONTRACTOR agrees to secure such license and pay the appropriate fees prior to performing any work hereunder. Section 4.15 Captions The captions of the sections and subsections of this Agreement are for convenience only and shall not be deemed to be relevant in resolving any question or interpretation or intent hereunder. Section 4.16 Integration and Modification This Agreement represents the entire understanding of CITY and CONTRACTOR as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may not be modified or altered except in writing, signed by both parties. Section 4.17 Contract Terms Prevail All exhibits and this Agreement are intended to be construed as a single document. Should any inconsistency occur between the specific terms of this Agreement and the attached exhibits, the terms of this Agreement shall prevail. Section 4.18 Severability The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Section 4.19 Ownership of documents All documents, photographs, reports, analyses, audits, computer media, or other material documents or data, and working papers, whether or not in final form, which have been obtained or prepared under this Agreement, shall be deemed the property of CITY. Upon CITY's request, CONTRACTOR shall allow CITY to inspect all such documents during CONTRACTOR's regular business hours. Upon termination or completion of services under this Agreement, all information collected, work product and documents shall be delivered by CONTRACTOR to CITY within ten (10) calendar days. 7 CITY agrees to indemnify, defend and hold CONTRACTOR harmless from any liability resulting from CITY's use of such documents for any purpose other than the purpose for which they were intended. Section 4.20 Authority The undersigned hereby represent and warrant that they are authorized by the parties to execute this Agreement. Section 4.21 Federal Transit Funding Conditions ❑ If the box at left is checked, the Federal Transit Funding conditions attached as Exhibit D apply to this Agreement. In the event of a conflict between the terms of this Agreement or any of its other exhibits, and the Federal Transit Funding Conditions, the Federal Transit Funding Conditions will control. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this Agreement as of the date first above written. ATTEST: JENNIFER CUSMIR City Clerk APPROVED AS TO FORM: JANICE D. MAGDICH, City Attorney By. jdm CITY OF LODI, a municipal corporation STEPHEN SCHWABAUER City Manager BaseCamp Environmental, Inc. By: _ Name: CHARLIE SIMPSON Title: Principal Attachments: Exhibit A - Scope of Services Exhibit B - Fee Proposal Exhibit C - Insurance Requirements Exhibit D - Federal Transit Funding Conditions (if applicable) Funding Source: TBD (Business Unit & Account No.) Doc ID:2018-11 GPA/Z CA:Rev.01.2015 8 EXHIBIT A LAKEHOUSE MIXED USE PROJECT CITY OF LODI PROPOSAL FOR EIR PREPARATION BASECAMP ENVIRONMENTAL, INC. September 30, 2020 BaseCamp contracted with the City of Lodi in early 2018 to prepare a CEQA Initial Study/Mitigated Negative Declaration (IS/MND) for the Lakehouse project. The IS/MND was completed, reviewed by City staff and released for public review during February and March of 2019. During the public review period, the City received comments stating that the project would involve significant environmental effects requiring the preparation of an EIR. While these comments were not considered conclusive, the City and the project applicant agreed that an EIR should be prepared. In Spring 2019, and with the knowledge of the City, the applicant requested that BaseCamp begin work on the EIR. No written agreement was put in place. Assuming that EIR work would soon proceed, BaseCamp continued working on the EIR until it became apparent that the EIR could not go forward until noise technical studies prepared by the applicant's consultants met with NCPA approval. EIR work was halted in June 2019. A portion of the EIR preparation costs was paid directly by the applicants, which is recognized in the Cost Proposal section below. A portion of this work was not invoiced and will be invoiced pursuant to approval of this proposal. Since that time, additional noise and project planning has been completed, and it appears that project -related concerns have been worked out to the general satisfaction of NCPA. As a result, the City and applicant are ready to move forward with the EIR. BaseCamp will be the EIR preparer, and BaseCamp's proposed scope of work, schedule and costs for EIR preparation are set forth in the remainder of this proposal. PROPOSED SCOPE OF WORK BaseCamp will prepare an Environmental Impact Report (EIR) for the Lakehouse project addressing the applicable requirements of the California Environmental Quality Act (CEQA). The project has been modified to address relevant comments and concerns raised during the public review of the IS/MND and, more specifically, noise and safety concerns raised by NCPA. The EIR will identify the potential environmental effects of the project, feasible mitigation measures needed to address significant effects and the comparative environmental effects of reasonable alternatives to the project. BaseCamp will provide support to City staff as required to process the EIR in conformance with applicable CEQA requirements throughout the EIR process concluding with the filing of the Notice of Determination. BaseCamp services will include: Preparation and circulation of a Notice of Preparation (NOP) Review and analysis of potential environmental issues and concerns raised in NOP comments Engagement and management of BaseCamp technical subcontractors Review of technical information submitted by the applicant and other consultants Conduct AB 52 notification and consultation on behalf of the City Preparation of an administrative review Draft EIR and modification of the EIR as suggested by the City Circulation of the Draft EIR for public review Preparation of Final EIR, Mitigation Monitoring Plan and CEQA Findings documents Attendance at Planning Commission and City Council meetings Preparation and filing of the Notice of Determination A principal resource for EIR preparation will be the Public Review Draft IS/MND for the Lakehouse project, which will supply substantial data and analysis in several of the subject areas required to be addressed. The information in the 2019 IS/MND will be updated and supplemented as described below. Among other things, the EIR will incorporate a detailed noise analysis prepared by the applicant's consultant Worley. This analysis, deemed generally adequate by NCPA, will be peer-reviewed by BaseCamp subcontractor J. C. Brennan and Associates. The results of noise study and the peer review will be reported in the EIR. Rather than being used as a source for CEQA identification of significant noise effects, however, the peer-reviewed noise study will be used to identify feasible noise control measures that will provide consistency with City noise standards and minimize potential conflicts between the power plant and residential uses. Similarly, the EIR will include the results of a Health Risk Assessment and more -detailed consideration of potential air quality and fire safety issues associated with ongoing power plant operations. A site-specific Biological Assessment will be prepared and utilized in the EIR impact analysis. The transportation analysis will include a new analysis of vehicle miles traveled impacts. Task 1, Project Management EIR preparation began initially and informally with Base Camp's meeting with the City and applicant in early April 2019, at which point work on the EIR was authorized and submittal of an EIR preparation proposal requested. An EIR preparation proposal has not been formally submitted for City Council approval until now. Continued work on the EIR will be re-initiated by BaseCamp on receipt of a signed work authorization from the City. During the course of EIR preparation, BaseCamp will attend general coordination meetings or teleconferences with the City and applicant representatives as required. A total of six face-to-face meetings or formal teleconferences are anticipated in this scope of work. These events would be scheduled in cooperation with City staff and are anticipated to include: Meetings: Re -Initiation of EIR Work 2-3 weeks before submittal of the Administrative Draft EIR Completion of City review of the Administrative Draft EIR After public review and initial review of comments 2 After City's review of the Administrative Final EIR, MMRP and Findings Prior to Planning Commission and City Council meetings Task 2, Administrative Draft EIR BaseCamp Environmental will prepare an administrative review version of the Draft EIR and submit it to City staff for review in electronic form. The principal elements of the administrative Draft EIR preparation process are discussed as subtasks below. Hard copies of the ADEIR will also be submitted, if requested by the City or applicant, for the cost of reproduction. It should be noted that a portion of the work described below was completed during the Spring of 2019 pursuant to direction from the applicant and City. Subtask 2A, Project Description BaseCamp will prepare a detailed written and graphic description of the project that identifies its purposes and objectives, proposed physical development, any necessary off-site improvements, the nature and timing of project operations and environmental controls proposed by the applicant, including established noise mitigation measures as well as any other proposed mitigation measures that may be identified during the EIR preparation process. Subtask 213, Notice of Prenaration BaseCamp will prepare a Notice of Preparation (NOP) for the Lakehouse project incorporating the Project Description discussed above and identifying the potential environmental issues that will be addressed in the EIR. The discussion of issues to be addressed in the EIR will be drawn from the following discussion, which includes the content of the 2019 IS/MND and substantive issues and concerns raised during public comment on the IS/MND. The NOP will be prepared and distributed as soon as possible after the City and applicant reach consensus on the Project Description. An administrative draft NOP will be prepared and submitted electronically for City review and comment. The NOP will be revised as required and circulated for agency comment. BaseCamp will prepare a Notice form for publication in the Lodi News Sentinel, coordinate with City staff to develop a NOP distribution list and take responsibility for directing, completing and documenting the NOP distribution process. On completion of the NOP review period, BaseCamp will prepare a summary of NOP comments for use in the EIR. 5uhtask 2C, Tech n(ca I Studies BaseCamp will engage its traffic, biology, noise and HRA technical subcontractors to begin work as soon as there is applicant and City consensus on the Project Description, that is that the Description is considered stable for the duration of the CEQA review. Traffic studies will be initiated when development quantities, access points and probable road improvements can be verified. Subcontractor authorizations will include delivery schedules that are consistent with the overall EIR preparation schedule described below. Technical studies that have been prepared, or will be prepared, for inclusion in the EIR include the following: Biological Resources Assessment, partially prepared by BaseCamp subcontractor Moore Biological Consultants Cultural Resources Investigation, completed by BaseCamp subcontractor Solano Archaeological Services during preparation of the IS/MND Health Risk Assessment, to be prepared pursuant to this proposal by BaseCamp subcontractor Environmental Permitting Specialists. Environmental Noise Study, prepared by BaseCamp subcontractor J. C. Brennan and Associates (project -generated traffic noise) during preparation of the IS/MND, updated in conjunction with EIR preparation Peer review of the Worley NCPA Power Plant noise study by J.C. Brennan and Associates. Traffic study, prepared by BaseCamp subcontractor K. D. Anderson and Associates during preparation of the IS/MND plus further work to be completed pursuant to this proposal, including analysis of vehicle miles traveled pursuant to SB 743. Other than as described above, BaseCamp will not be responsible for preparation of additional noise technical studies. Noise concerns related to the NCPA power plant will be addressed using the report prepared by the applicant's acoustical consultant Worley. It is assumed for the purposes of this proposal that the consultant's work product will adequately inform the EIR as to power plant noise concerns, subject to the peer review by J.C. Brennan and Associates. Subtask 2D, Preparation of EIR Chanters Preparation of the EIR's technical chapters will begin immediately upon authorization. This information will be presented in Environmental Setting sections in each chapter. The scope of study will be related to the importance and complexity of potential environmental effects. Issues and concerns to be addressed in the EIR will be based on analysis and public comment to date as well as any substantive issues identified in public or agency comments on the NOP. The potential environmental effects of the project will be analyzed in discrete technical chapters addressing each area of concern listed in the most recent version of the CEQA Guidelines Appendix G. Significant, potentially significant and less than significant environmental effects will be identified. The basis of the environmental impact 4 determination will be "significance thresholds," which will be identified in each issue area based on the CEQA Guidelines Appendix G. The EIR will consider relationships between the various disciplines and project elements and will include chapters addressing growth-inducing impacts, irreversible environmental changes and any other EIR elements required by CEQA. The EIR will touch on areas of potential environmental concern that involve impacts of the environment antfr rp eject• consistent with the findings of the California Supreme Court in California BIA vs. BAAQMD. This decision provides that "CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project's future users or residents." Information related to these issues and concerns, which include potential noise exposure and health risk associated with the adjacent power plant, will be presented and discussed in the EIR as appropriate but will not be identified as significant environmental effects, consistent with the BIA vs. BAAQMD findings. When significant or potentially significant environmental effects are identified, the EIR will identify existing regulatory requirements and standards of professional practice that would, in ordinary circumstances, avoid or reduce the identified environmental impacts. Where such existing requirements are not sufficient to reduce environmental effects to a less than significant level, the EIR will identify feasible mitigation measures with potential to reduce environmental effects and the basis for that determination. The description of mitigation measures will identify the necessary action, responsibility for implementation and monitoring, and whether or not the measure(s) will reduce impacts to a less than significant level. If significant effects cannot be reduced to a less than significant level, or avoided, the residual significant and unavoidable effect will be identified. Feasible mitigation measures will be evaluated for their consistency with applicable statutory and case law standards, i.e. nexus and proportionality. Where applicable, mitigation measures will be evaluated for their potential to generate additional significant environmental effects. Potential for significant effects that would arise from proposed mitigation measures will also be identified in the EIR. 5ubtask 7.E, issue -Specific Analysis The analysis will also consider the range of potential environmental concerns described in the latest version of the CEQA Environmental Questionnaire as well as potential environmental concerns that may be warranted by recent legislation and CEQA practice. Detailed analysis in the EIR will be confined to areas of environmental concern with potential for significant environmental effects. BaseCamp's understanding of the potentially significant effects of the project are described below in the order they appear in the CEQA Environmental Questionnaire. Aesthetics: BaseCamp will review, update and expand the aesthetic impact analysis included in the 2019 IS/MND considering current site plans, building designs and proposed building appearance, design and scale as well as the applicability of the City design review process. No substantial new information, analysis or potentially significant aesthetic effects are anticipated in this area of concern. Agriculture and Forestry: The project site does not include agricultural land and is mapped as being dedicated to urban uses. The 2019 IS/MND identified no agricultural or forestry effects. BaseCamp will review, update and expand the analysis included in the IS/MND as appropriate. No substantial new information, analysis or potentially significant agriculture or forestry effects are anticipated. Alr ualit :The IS/MND air quality analysis will be updated and expanded to include a more detailed explanation of responsibilities for air quality planning, regulation and management as they pertain to the project. Modeling results will be recalculated to quantify criteria pollutant emissions from the current project. Potential air toxic emissions associated with the project will be reconsidered and quantified as needed including potential releases and permitting controls on asbestos, lead-based paint and any existing site contamination. The issue of project exposure to air toxic emissions associated with the adjacent power plant will be revisited in light of California B/A v. BAAQMD. Potential health risks associated with continued operation of the NCPA facility will be considered and quantified as appropriate in a new Health Risk Assessment to be prepared by BaseCamp subcontractor Environmental Permitting Associates. BaseCamp will consider whether any such risks would be exacerbated by the project, and if this is the case the changes will be evaluated as potentially significant effects on the environment under CEQA. If not, the HRA results will be disclosed in the EIR but will not be considered potentially significant impacts under CEQA. Biological Resourcrs: The IS/MND's description of the biological effects of the project was aggressively challenged during the public review. In response, a detailed Biological Assessment of the site was initiated in 2019 but not completed. The BA for the project will be prepared by BaseCamp subcontractor Moore Biological Consultants, based on already -completed field studies and data base searches. Database searches will be updated, the presence or absence of biological resources on the site determined and the potential for special -status species impacts and impacts on sensitive habitats will be projected. The BA will also consider the relationship of the project to vegetation and wildlife use of the project area generally. New biological information and any potential for new significant effects or other biological resource concerns will be detailed in the EIR. Cultural Resources: The cultural resources and Tribal Cultural Resource sensitivity of the site and vicinity were assessed during the preparation of the 2019 IS/. Technical studies by Solano Archaeology reported on on -the -ground surveys of the site and a search of 6 available cultural resources databases and contacts. BaseCamp conducted notification and consultation with Native American tribes on behalf of the City pursuant to AB 52. This relatively recent consultation process should be considered valid. However, EIR preparation will include re -contact of the tribes involved to verify that AB 52 requirements have been met. No new cultural resources concerns have been raised during or since the public review of the IS/MND. No substantial new information, analysis or cultural resource impacts of the project are anticipated. The EIR will report the results of updated AB 52 notification and consultation as appropriate. Energy: Issues associated with energy were addressed in the 2019 IS/MND and found to be less than significant. The site plan for the project has been modified somewhat, but its basic nature has not changed. BaseCamp will review, update and expand the analysis included in the IS/MND as appropriate. No substantial new information, analysis or potentially significant energy effects are anticipated. Geology and Soils: Issues associated with geology, soils and paleontology were addressed in the 2019 IS/MND and found to be less than significant with mitigation. As noted above, the site plan for the project has been modified somewhat, but its basic nature has not changed substantially. BaseCamp will review, update and expand the analysis included in the IS/MND as appropriate. No substantial new information, analysis or potentially significant geology, soils and paleontology effects are anticipated. Greenhouse Gas Emissions: Greenhouse gas emissions (GHG) associated with the project will be re -calculated using the CalEEMod air quality impact model as a part of updated air pollutant emission modeling. BaseCamp will review, update and expand the GHG analysis included in the IS/MND as appropriate. CalEEMod GHG estimates will be compared to the results of the VMT modeling and adjusted or explained as required. No substantial increase in GHG emissions or significance is anticipated from that reported in the IS/MND. Hazards and Hazardous Materials: The EIR will include additional detail regarding existing safety and health hazards that may exist on the site and on the adjacent NCPA power plant site including concerns associated with on-site petroleum fuel storage and any other hazardous materials being stored or used on that site. The IS/MND issue of project exposure to safety hazards and air toxic emissions will be revisited in light of Californio BIA v. BAAQMD. Potential health hazards associated with air toxic emissions from adjacent uses, including NCPA, will be reported from the air quality analysis. BaseCamp will consider whether any such hazards would be exacerbated by the project and if this is the case the changes will be evaluated as potentially significant effects on the environment under CEQA and, if so, analyzed for their potential significance under CEQA. If not, the HRA results will be disclosed in the EIR without identifying a CEQA impact and significance level. The EIR will briefly consider potential hazards and health concerns that were identified during the public review of the 2019 IS/MND, including the demolition of exlsting 7 buildings, excavation in potentially contaminated areas, indoor health hazards associated with the use of formaldehyde -containing building materials and potential effects on emergency response and evacuation resulting from the operation of the adjacent rail spurs. These potential effects are not expected to be significant or are based on speculation and need not be addressed further in the EIR. Mitigation measures identified in the 2019 IS/MND will be updated and augmented as required. Hydrology and Water Quality. There are no surface water resources on or near the project site, and the project would not involve any potential direct effects on groundwater, obtaining its potable water supply from the City system. The project would contribute to storm drainage from the area and would be subject to existing storm water management requirements, which are adequately addressed in IS/MND mitigation measures. BaseCamp will review, update and expand the hydrology and water quality analysis included in the IS/MND as appropriate. No new issues or concerns have been identified in this area of concern. Land Use and Planning; Comments on the IS/MND raised concerns related to the City's industrial land supply and potential conflict between the project and future re -use of the General Mills property. These speculative concerns will be identified in the EIR but not subject to CEQA impact analysis. Noise: The EIR will re -visit and re -characterize existing environmental noise conditions in the project vicinity, including noise generated by the adjacent NCPA power plan during operational hours, based on a technical report prepared for the applicant by Worley and peer reviewed by BaseCamp subcontractor J. C. Brennan Acoustical Consulting. This approach assumes that the analysis contained in the Worley report is considered acceptable by NCPA and will be confirmed to be acceptable as a result of the peer review. The 2019 IS/MND's analysis of project exposure to power plant noise will be revisited in light of California B1A v. BAAQMD, considering whether exposure would be exacerbated by the project. It is believed that the project, including proposed noise attenuation measures, will reduce existing potential exposure. However, noise generated by the power plant will not be considered significant effects on the environment under CEQA. The EIR would reconsider the potential noise impacts of traffic generated by the project in an updated version of the technical study prepared for the 2019 IS/MND by J. C. Brennan. Based on this information, the EIR will describe the potential noise effects of traffic generated by the project and new mechanical equipment on existing residents of the project vicinity, future residents of the project and users and workers in proposed hotel and retail commercial uses. Papulation and Housing. The effects of the project on population and housing were addressed in the 2019 IS/MND and found to be less than significant. The site plan for the project has been modified somewhat and the number of proposed housing units reduced slightly, but the basic nature of the project has not changed. BaseCamp will 8 review, update and expand the population and housing analysis included in the IS/MND as appropriate. No new issues or concerns have been identified in this area of concern. Public Services. The effects of the project on fire protection, police protection, schools and parks and recreation were addressed in the 2019 IS/MND and found to be less than significant. BaseCamp will recontact the service providers and review, update and expand the public services analysis included in the IS/MND as appropriate. No new issues or concerns have been identified in this area of concern. Transportation: As a result of recent changes to the California Environmental Quality Act (CEQA), environmental documents are required to evaluate the significance of transportation impacts based upon vehicle miles traveled (VMT) The City of Lodi has developed a VMT traffic model that establishes VMT baseline for various uses in the City of Lodi and will model VMT for proposed uses. BaseCamp Environmental and KD Anderson & Associates have consulted with City staff and Fehr & Peers to develop a case-by-case approach for analysis of the VMT impacts of the Lake House project. We propose to quantify VMT for the land uses comprising the project using the Fehr and Peers model. Results for each use will be compared to citywide averages to define the initial level of VMT significance. For the multiple -family residential portion of the Lake House project, the project -related VMT will be compared to the citywide average for "Multi -Family Units", as established by the City VMT model. For the hotel portion of the Lake House project, the project -related VMT will be compared to the citywide average for "General Commercial", as established by the City VMT model. The City has not defined significance thresholds for VMT and therefore the State recommended reduction of 15% below baseline VMT will be applied as the significance threshold. If the project fails to meet the State recommended 15% reduction target, then feasible mitigation will be proposed.. The modeling process and evaluation of mitigation options will be carefully documented for consideration by City staff and members of the public. If mitigation is needed, the EIR will compare the "unmitigated" results with the results that can be achieved with feasible mitigation to determine whether the mitigated project will result in potentially significant VMT effects with respect to City significance thresholds. This proposal assumes the VMT analysis will require 24 hours of staff time. In the event that the modeling results and mitigation analysis do not produce supportable results, a modified methodology and a contract amendment may be needed. A traffic operations analysis will be based on an updated version of the technical report prepared by K.D. Anderson and Associates for the 2019 IS/MND and will consider the latest proposed land uses for the project, 9 including modification of estimated project trip generation, revised projected traffic volumes and revised level of service (LOS) predictions that will determine whether the project is consistent with General Plan LOS standards. Utilities and Services. The availability of and the effects of the project on water, wastewater and storm drainage utilities as well as the regulated utilities were addressed in the 2019 IS/MND and found to be less than significant. As noted, the project has been modified, reducing the number of proposed housing units and utility demands. BaseCamp will recontact the affected utilities and review, update and expand the public services analysis included in the IS/MND as appropriate. No new issues or concerns have been identified in this area of concern. Wildfire. Issues associated with wildfire were addressed in the IS/MND and found to be less than significant due to the urban location of the project site. The site of the project and its sensitivity has not changed with respect to this issue. BaseCamp will review, update and expand the the IS/MND public services analysis as appropriate. No new issues or concerns have been identified in this area of concern. Alternatives to the Proposed Project: The EIR will analyze the comparative environmental effects of a reasonable range of alternatives (up to four total) that could fulfill the objectives of the project while minimizing impacts on the environment. This analysis would include consideration of alternative project size or design, development under existing general plan and zoning designations and, as required, the "no -project" alternative. The analysis of the "no project" alternative will consider the comparative environmental effects of not approving the general plan amendment, rezoning or site plan review or any other City approvals related to the proposed project. The environmental effects of the alternatives will be compared in an effects matrix. Cumulative_ Impact A;naly is; The EIR will include an analysis of the cumulative impacts of the project in each of the subject areas addressed in detail in an EIR chapter. The cumulative impact analysis will use the "general plan EIR" approach using the analysis in the certified Lodi Task 3, Administrative Draft EIR, First Revision and Screencheck BaseCamp will meet or teleconference with City staff to receive comment on the Administrative Draft EIR. BaseCamp will revise the document as necessary to address City comments and resubmit it as a screencheck draft for final review and approval for publication. City comments on the screencheck draft will be incorporated into the EIR before publication. Task 4, Draft EIR Publication and Distribution BaseCamp will prepare a complete electronic version of the approved Draft EIR, including technical appendices, for posting to the City's web site. The approved Draft EIR will be reproduced in hard copy as requested by the City for the costs of reproduction. BaseCamp will prepare or assist the City in preparing the Notice of Intent, EIR distribution list and Notice of Ito] Completion. Delivery of EIR documents to the State Clearinghouse (SCH) will not be required Effective November 1, all SCH submittals will be handled electronically; BaseCamp will complete the SCH submittal on the City's behalf. Task 5, Final EIR, Mitigation Monitoring Reporting Plan During and after the public review period, BaseCamp will meet or teleconference with the City to discuss the comments received on the Draft EIR and to determine the general nature and voicing of the responses to comments as well as to identify additional technical analysis that may be necessary, if any. BaseCamp compile an Administrative Final EIR (AFEIR) consisting of an updated version of the Draft EIR, which would be modified as required to address any changes to the EIR content warranted by comments on the Draft EIR or responses to those comments. The EIR introduction will be modified to describe the public review process, summarize agency and public comments and reference the location of comment and response documents in the Final EIR. A new EIR chapter will contain a list of commenters and the proposed City responses to any substantive comments received on the DEIR. The AFEIR will be reproduced and submitted electronically to the City for administrative review. BaseCamp will meet or teleconference with the City to discuss the AFEIR and any necessary revisions. The FEIR would be revised and resubmitted as a final (screencheck) version for review and approval or further modification if needed. Following final revisions, the FEIR would be reproduced for the cost of reproduction as requested by the City and delivered to the City for distribution. Finalization, reproduction and delivery of the FEIR will be timed to allow required distribution to Draft EIR commenters a minimum of 10 days ahead of planned certification. BaseCamp will prepare a Mitigation Monitoring/Reporting Program (MMRP) in a format acceptable to the City. The MMRP will identify all of the applicable Initial Study and EIR mitigation measures, the party responsible for implementing the mitigation and the timing and method of monitoring compliance. The MMRP will be submitted electronically for administrative review by the City. The MMRP will be revised and delivered to the City as an electronic file; hard copies will be provided as requested, for the cost of reproduction. BaseCamp will prepare a draft set of CEQA findings of fact meeting the criteria established in CEQA Guidelines Section 15091-15093 in a form acceptable to the City. If the project involves one or more significant impacts that cannot be avoided or reduced to a less than significant level with certainty, a Statement of Overriding Considerations (SOC) will be prepared. The Findings/SOC will be submitted electronically for administrative review. The Findings/SOC will be revised and delivered to the City as an electronic file; hard copies will be provided as requested for the cost of reproduction. 11 Task 6, Public Meetings BaseCamp will attend two public meetings (i.e. one Planning Commission and one City Supervisor meeting) in person or electronically as appropriate for the purpose of presenting answering questions or discussing the EIR and CEQA process with the decision -makers and the attending public. BaseCamp will attend additional public meetings as requested by the City, on an extra services basis. PROPOSED SCHEDULE BaseCamp's conceptual schedule for EIR preparation and processing assumes a start date of October 15,2020. It is assumed for the purpose of Scheduling that the project site plan is adequately defined and stable. It is also assumed that building elevations, other project details and details regarding applicant -proposed mitigation measures will be provided during preparation of the EIR in a timely manner. Timely completion of the EIR process is important to the City, applicant and BaseCamp. Undue delays may result in extra costs. Authorization to Proceed Submit review draft NOP Being 30 -day NOP review End of NOP review period Submit Admin Draft EIR to City City completes review of Admin EIR Start 45 -day EIR Public Review Period Start Preparation of Final EIR End Public Review Period, Set Planning Commission Date Submit Admin Final EIR, MMRP and Findings Planning Commission City Council COST PROPOSAL October 15, 2020 November 4 November 18 December 17 January 16, 2021 January 30 February 16 March 1 April 1 April 15 May 2021 June 2021 A portion of EIR preparation costs ($22,290.80) has already been paid to BaseCamp Environmental by the applicant. Additional costs to prepare and process the Lakehouse EIR as described in the above Scope of Work will involve an estimated fee not to exceed $94,767.50 to be billed monthly on a progress basis, in accordance with BaseCamp's standard rate and charge schedule, attached. Overall proposed EIR costs are detailed on the following pages, including credits for work already paid for by the applicant. Fees for extra services, if required, will be billed on the same basis in accordance with a City -approved Extra Services Request. '12 BASECAMP ENVIRONMENTAL PROPOSED EIR BUDGET LAKE HOUSE PROJECT 10/9/20 PROJECT MANAGEMENT AND COORDINATION Client and City Staff Meetings Project Management Subcontractor Management Credit for BaseCamp work completed and paid Total Project Management NOTICE OF PREPARATION Administrative Draft NOP Prepare Notices and Distribution List Revision and Distribution Summarize process, issues and concerns report Total Notice of Preparation ADMIN ENVIRONMENTAL IMPACT REPORT Introduction Summary and Summary Table Project Description Aesthetics Agriculture Climate and Air Quality, HRA Biological Resources Cultural Resources, Regroup on AB 52 Geology and Soils Global Climate Change, conform with VMT Hazards and Hazardous Materials Hydrology and Water Quality Land Use and Planning Noise Population and Housing Public Services Transportation, VMT incorporation Utilities and Services Growth Inducing Impacts 14 COST $2,120.00 $4,360.00 $1,520.00 ($1,710.00) $6,290.00 $2,960.00 $490.00 $1,030.00 $980.00 $5,460.00 $980.00 $1,620.00 $2,300.00 $1,570.00 $600.00 $1,670.00 $1,390.00 $1,090.00 $690.00 $790.00 $2,740.00 $980.00 $3,160.00 $3,500.00 $600.00 $1,200.00 $2,540.00 $1,760.00 $600.00 EXHIBIT B Alternatives $3,140.00 Cumulative Impacts $2,870.00 Other CEQA Requirements $1,200.00 Editing, Graphics and Word Processing $5,560.00 Credit for BaseCamp work completed and paid ($18,137.50) Total Admin EIR $24,412.50 1st REVISION TO ADMIN DRAFT EIR Revisions $5,840.00 Total 1st Revision $5,840.00 SCREENCHECK DRAFT EIR Revisions $2,540.00 Total Screencheck Draft EIR $2,540.00 DRAFT EIR REPRODUCTION AND DISTRIBUTION EIR Reproduction, Notices, Distribution, Coordination $3,840.00 Total Draft EIR Repro and Distribution $3,840.00 FINAL EIR, MMRP Administrative Draft Final EIR $4,840.00 Administrative Draft MMRP $2,300.00 Prepare Findings Document $3,440.00 Final Edits, Repro and Distribution $1,920.00 Total Final EIR, MMRP and Findings $10,580.00 PUBLIC MEETINGS Planning Commission, prep and meet (1) $570.00 City Council, prep and meet (1) $570.00 Additional public meetings, if required (3) $1,710.00 Total Public Meetings $2,850.00 TOTAL LABOR $61,812.50 EXPENSES Routine In -House Copying $150.00 Updated Hazmat and Cultural Database Searches $850.00 Reproduction, as required At Cost Miscellaneous Expense (Cost+10%) $220.00 Total Expenses $1,220.00 15 SUBCONTRACTORS Environmental Permitting Specialists, NCPA HRA j. c. brennan, peer review Worley report j. c. brennan, update CEQA noise impact analysis kdAnderson, supplemental traffic work, including VMT Moore Biological, complete biological assessment report Credit for Moore Biological work completed and paid Total Subcontractors TOTAL PROPOSED COST 10% CONTINGENCY TOTAL PROPOSED COST W/ CONTINGENCIES 16 $7,260.00 $4,350.00 $4,125.00 $12,000.00 $6,443.30 ($2,443.30) $31,735.00 $94,767.50 $9,476.75 $104,244.25 STANDARD SCHEDULE OF RATES AND CHARGES BASECAMP ENVIRONMENTAL, INC. 2020 HOURLY FEES FOR PERSONNEL Principal $190 Senior Planner $150 Project Planner $130 Assistant Environmental Planner $110 Research Specialist $90 Graphics Technician $90 Document Processing $80 COPYING CHARGES Charges for copying by BaseCamp Environmental will be charged as follows: Copies (b/w) $0.15/page Copies (color) $0.25/page EXPENSES Subcontractor charges and other materials and services purchased by BaseCamp in connection with services provided under this Agreement will be invoiced at actual cost plus 10%. Materials and services include but are not limited to costs for subcontractor services, travel and subsistence, insurance certificates necessitated by the job, document and map reproduction, computer time, telecommunications, out -of -house fax, rented or leased equipment, supplies, and postage and shipping expenses. Signature: -a&?67 P 14�?h Email: jmagdich@lodi.gov 17 157 CALIFORNIA RESERVE INC. APPLICATION REIMBURSEMENT AGREEMENT This Agreement is made by and between the City of Lodi, a municipal corporation, hereafter referred to as "CITY", 157 California Reserve Inc., a California incorporated company, hereafter referred to as "DEVELOPER" RECITALS A. DEVELOPER wishes to seek a General Plan Amendment, Rezone and Site Plan and Architectural Review and development for a hotel, restaurant, retail and apartment project on Turner Road. CITY intends to provide thorough, complete, and professional review of DEVELOPER's various land use applications. In order to provide such thorough, complete, and professional review, CITY intends to supplement its existing staff with qualified adjunct staff secured via a consultant services agreement. DEVELOPER agrees to reimburse CITY for all its expenses related to the thorough, complete, and professional review of DEVELOPER's various land use applications including but not limited to contracting with outside vendors as provided in this Agreement. B. The property proposed for annexation is shown on Exhibit "A" which is attached hereto and incorporated herein by this reference (the "Property"). C. State Laws and City policies and procedures require the preparation of a comprehensive site layout and design and a specific project level development plan ("Development Plan"). D. Said Plans will require an Environmental Impact Report ("EIR") to determine the environmental impact, if any, of the proposed Development Plan. E. CITY's policies and procedures require that DEVELOPER bear the full cost of processing the proposed Development Plan. F. The total estimated fees and costs for the processing of the EIR and other applications are $115,000.00. The fees listed herein are estimates. Should the actual fees and costs exceed the estimates, DEVELOPER shall pay the difference. Likewise should the actual costs be less than the estimated costs, DEVELOPER's obligation shall be reduced accordingly. G. The Parties further acknowledge that the California Fair Political Practices Act requires that DEVELOPER have no direction or control over the response times, selection, supervision, activities, recommendations or decisions of the contract environmental planner. AGREEMENT 888265v3 35890/0001 1 Han06 PDE NOW THEREFORE in consideration of the mutual covenants made herein, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties hereto agree as follows: 1. Recitals True and Correct. The parties agree that the "RECITALS" contained hereinabove are true and correct. 2. Expense Reimbursement. CITY will engage outside vendors and in-house staff in its sole discretion to perform the legal, environmental and planning services necessary for the Project. DEVELOPER will reimburse CITY for all in-house and outside costs associated with the Project. The fees listed herein are estimates. Should the actual fees and costs exceed the estimates, DEVELOPER shall pay the difference. Likewise should the actual costs be less than the estimated costs, DEVELOPER'S obligation shall be reduced accordingly. 3. DEVELOPER'S Cooperation. DEVELOPER will cooperate with CITY in performing the legal, environmental and planning work required of the CITY to advance the Project. 4. DEVELOPER'S Deposit. Upon execution of the Agreement, DEVELOPER shall deposit $60,000.00 cash (or other equivalent security in a form approved by the City Manager) with CITY. CITY will hold the deposit and charge invoices received and in-house expenses incurred against the deposit. In the event that the deposit is drawn down to a balance of less than $20,000.00, DEVELOPER shall deposit additional funds to maintain an evergreen balance of at least $20,000.00 ("Evergreen Deposit"). DEVELOPER shall deposit the Evergreen Deposit within 15 days of receiving notice from CITY. In the event that funds remain on deposit at the conclusion of the services contemplated by this Agreement; they shall be refunded to DEVELOPER. The deposit shall earn interest at the LAIF rate. Interest shall be credited back to the Evergreen Account and only refunded if a positive balance remains at the conclusion of the project. 5. Termination of A reemeii . a. DEVELOPER shall have the right to terminate this Agreement by delivering notice to the parties and upon receipt of such notice by: CITY, CITY shall refund to DEVELOPER any unused funds previously deposited by DEVELOPER b. Post Termination Work. Notwithstanding the provisions of Section 7(a) and (b), DEVELOPER may request that, after DEVELOPER has delivered notice of termination, CITY complete work in progress as identified by DEVELOPER. DEVELOPER shall reimburse CITY for the costs of completion of the identified work. 6. Payment of Costs Not Contingent on Project A roval/No Entitlements Granted. The payment of the fees and costs identified herein is not contingent upon the approval of the proposed development. DEVELOPER understands that the proposed project requires the approval of Lodi City Council. DEVELOPER fully accepts all risks associated with the approval process. Nothing in this Agreement shall provide 8882650 35890/0001 11Jan06 PDE DEVELOPER with any right to secure approval of any development plan or other entitlement. In addition, DEVELOPER agrees that it will have no rights to select the contract environmental planner; or direct the work, response times, recommendations or approvals of the contract environmental planner. 7. DEVELOPER'S Failure to Pay. Should DEVELOPER fail to make any of the payments in the amounts and at the times stated in the Section 4 of this Agreement, CITY may, at its option, stop all further work on the project and not proceed until the sums due are paid. Should DEVELOPER abandon the project, DEVELOPER shall be responsible for the payment to CITY of all fees and costs incurred by CITY at the time the project is abandoned, including such fees and costs for all work in progress but not yet billed to CITY by its contract consultants. 8. No Damages for Delay. CITY, its officers, agents, or employees shall not be responsible or liable to DEVELOPER for any damages of any type or description which may result from any delays associated with the processing of the project whether caused by the negligence of CITY, its officers, agents, employees, or otherwise. 9. California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Joaquin, State of California, or any other appropriate court in such county, and DEVELOPER covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 10. Waiver. No delay or omission in the exercise of the right or remedy by a non -defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party or any default must be in writing and shall not be a waiver of any other default concerning the same and any other provision of this Agreement. 11. Attoniey Fees,. If either party to this Agreement is required to initiate or defend or is made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal, and in addition a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 12. [nte:rpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 8882650 35890/0001 11Jan06 PDE 13. Integration: Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 14. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its validity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 15. Corporate Authgri . The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party if bound. 16. Indcmnification Defense and Hold Harmless. a. DEVELOPER agrees to and shall indemnify, defend and hold CITY, its council members, officers, agents, employees and representatives harmless from liability for damage or claims of damage, for personal injury, including death, and claims for property damage which may arise from CITY's hiring of a contract environmental planner and the service provided thereby. b. DEVELOPER's obligation under this section to indemnify, defend and hold harmless CITY, its council members, officers, agents, employees, and representatives shall not extend to liability for damage or claims for damage arising out of the sole negligence or willful act of CITY, its council members, officers, agents, employees or representatives. In addition, DEVELOPER's obligation shall not extend to any award of punitive damages against CITY resulting from the conduct of CITY, its council members, officers, agents, employees or representatives. C. With respect to any action challenging the validity of this Agreement or any environmental, financial or other documentation related to approval of this Agreement, DEVELOPER further agrees to defend, indemnify, hold harmless, pay all damages, costs and fees, if any incurred to either CITY or plaintiffs) filing such an action should a court award plaintiff(s) damages, costs and fees, and to provide a defense for CITY in any such action. SIGNATURES FOLLOW ON NEXT PAGE 8882650 35890/0001 11Jan06 PDE IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: Jennifer Cusmir, City Clerk APPROVED AS TO FORM: D. Janice D. Magdich, City Attorney jdm Signature:. ILGG 2a&h Email: jmagdich@lodi.gov THE CITY OF LODI, a municipal corporation By. Stephen Schwabauer, City Manager DEVELOPER: 157 California Reserve Inc, a California Incorporated company By: Name: Celia Hun Title: President Address: 67667 HWY 20 Bed OR 97703 8882650 35890/0001 1 IJan06 PDE RESOLUTION NO. 2020-266 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR ENVIRONMENTAL REVIEW DOCUMENTATION WITH BASECAMP ENVIRONMENTAL, INC., OF LODI, AND TO EXECUTE A REIMBURSEMENT AGREEMENT WITH CELIA HUNG FOR ENVIRONMENTAL REVIEW SERVICES BY BASECAMP ENVIRONMENTAL, INC., FOR THE PROPOSED PROJECT AT 2201 WEST TURNER ROAD WHEREAS, the City of Lodi has received a land use application from Celia Hung for a proposed project at 2201 West Turner Road. The proposed project includes a General Plan Amendment, Rezone, and master development plan for the property; and WHEREAS, the land use entitlement for this project will require the preparation of an environmental document consistent with the California Environmental Quality Act. This project is not exempt from environmental review; and WHEREAS, the project applicant is required to pay for the preparation of environmental review; and WHEREAS, staff has prepared a Professional Services Agreement for environmental review documentation with BaseCamp Environmental, Inc., in which the cost of the professional services is identified not to exceed $104,244.25; and WHEREAS, a reimbursement agreement with Celia Hung, the project applicant, is also included that ensures that all project costs are born by the applicant. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a Professional Services Agreement for environmental review documentation with BaseCamp Environmental, Inc., of Lodi, California, in an amount not to exceed $104,244.25; and BE IT FURTHER RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a reimbursement agreement with Celia Hung for environmental review services by BaseCamp Environmental, Inc., for the proposed project at 2201 West Turner Road; and BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol Manual (adopted 11/6/19, Resolution No. 2019-223), the City Attorney is hereby authorized to make minor revisions to the above -referenced document(s) that do not alter the compensation or term, and to make clerical corrections as necessary. Dated: November 18, 2020 I hereby certify that Resolution No. 2020-266 was passed and adopted by the City Council of the City of Lodi in a regular meeting held November 18, 2020 by the following vote: AYES: COUNCIL MEMBERS — Chandler, Nakanishi, and Mayor Kuehne NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — Mounce ABSTAIN: COUNCIL MEMBERS — None JENN IFSMIRIR City Clerk 2020-266