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14-042 LSA Associates, Inc, for consultant services for monitoring measures for the AC2 projectCUPERTINO March 24, 2014 LSA Associates, Inc 2215 Fifth Street Berkley, CA 94710 OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE: • CUPERTINO, CA 95014 -3255 TELEPHONE: (408) 777-3223 • FAX: (408) 777 -3366 WEBSITE: www.cupertitio.org Re: Amendment to agreement consultant services for the monitoring of mitigation measures for the Apple Campus 2 Project. A fully executed copy of the agreement for consultant services with the City of Cupertino is enclosed. If you have any questions or need additional information, please contact the Community Development Department at (408) 777 -3308. Sincerely, Andrea Sanders Senior Office Assistant City Clerk's Office Enclosure cc: Community Development AGREEMENT BETWEEN THE CITY OF CUPERTINO AND LSA ASSOCIATES, INC, FOR CONSULTANT SERVICES FOR MONITORING OF MITIGATION MEASURES /� FOR THE APPLE CAMPUS 2 PROJECT 1 THIS AGREEMENT for reference dated March 71h 2014 is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City "), and LSA Associates, Inc> a California corporation, whose address is 2215 Fifth Street, Berkeley, CA 94710 (hereinafter referred to as "Consultant "), and is made with reference to the following: RECITALS: A. City is a municipal corporation. duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement; and C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and Consultant desire to enter into an agreement not to exceed THIRTY THOUSAND DOLLARS ($30,000) upon the terms and conditions herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The term of this Agreement shall commence on March 7, 2014, and shall terminate on June 3151, 2015, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED: Consultant shall perform each and every service set forth in Exhibit "A" which is attached hereto and incorporated herein by this reference. 3. COMPENSATION TO CONSULTANT: Consultant shall be compensated for services performed pursuant to this Agreement in the amount not to exceed THIRTY THOUSAND DOLLARS ($30,000) set forth in Exhibit "A" which is attached hereto and incorporated herein by this reference. Payment shall be made by checks drawn on the treasury of the City, to be taken from the 110 - 7301 -9327 fund. 2 4. TIME IS OF THE ESSENCE: Consultant and City agree that time is of the essence regarding the performance of this Agreement. 5. STANDARD OF CARE: Consultant agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 6. INDEPENDENT PARTIES: City and Consultant intend that the relationship between them created by this Agreement is that of employer- independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are. available from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer- employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 7. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other fede:ral, or state rules and regulations. Consultant shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 8. NON - DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer /employee conduct, Consultant agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Consultant agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 9. HOLD HARMLESS: Indemnification: Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the Agreement, indemnify,, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to the performance of this Agreement by Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees, of litigation. B. Claims for Other Liability. Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liability, claims, actions, causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage to property or other liability of any nature, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees. C. Claims involving intellectual property. In addition to the obligations set forth in (A) and (B) above, Consultant shall indemnify, defend, and hold the City, its elected and appointed officers, employees, and volunteers, harmless from and against any Claim in which a violation of intellectual property rights, including but not limited to copyright or patent rights, is alleged that arises out of, pertains to, or relates to Consultant's negligence, recklessness or willful misconduct under this Agreement. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. 10. INSURANCE: On or before the commencement of the term of this Agreement, Consultant shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 9A, B, C, D and E. Such certificates, which do not limit Consultant's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate=_ be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, Attention: City Manager." It is agreed that Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. 'Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Consultant shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence $1,000,000 aggregate - all other Property Damage: $100,000 each occurrence $2,50,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of $1,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Comprehensive automotive liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Limit: $500,000 each occurrence (4) Professional Liability: Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000,000. B. SUBROGATION WAIVER: Consultant agrees that in the event of loss due to any of the perils for which he /she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing co)riprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and comnussions, officers, employees and volunteers shall be named as an additional insured under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not nan►E!d as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. 11. CONFLICT OF INTEREST: Consultant warrants that it is not a conflict of interest for Consultant to perform the services required by this Agreement. Consultant may be required to fill out a conflict of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations. 12. PROHIBITION AGAINST TRANSFERS: Consultant shall not assign, sublease, :hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Consultant from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of.such assignment shall be promptly furnished to City by Consultant. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power of the corporation. 13. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names and resumes are attached to this Agreement shall be used in the performance of this Agreement. In the event that Consultant employs subcontractors; such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general, automobile and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 14. PERMITS AND LICENSES: Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses including, but not limited to, a City Business License, that may be required in connection with the performance of services hereunder. 15. REPORTS: A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report ", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of City. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to City the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of City, and all publication rights are reserved to City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. B. All Reports prepared by Consultant may be used by City in execution or implementation of: (1) The original Project for which Consultant was hired; (2) Completion of the original Project by others; (3) Subsequent additions to the original project; and /or (4) Other City projects as appropriate. C. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be printed on recycled paper. All Reports shall be copied on both sides of the paper except for one original, which shall be single sided. E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. 16. RECORDS: Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate rE,cords of services provided in sufficient detail to permit an evaluation of services. All. such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records; together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then. Consultant shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. 17. NOTICES: All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Consultant to City shall be addressed to City at: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Aarti Shrivastava All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: LSA Associates, Inc 2215 Fifth Street Berkeley, CA 94710 Attn: Tudith Malamut 18. TERMINATION: In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If such default is not cured within within the time specified after receipt by Consultant from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Consultant written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 19. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. 20. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law ruler which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 21. ADVERTISEMENT: Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otl:ierwise. 22. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 23. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the previsions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 24. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 25. CAPTIONS: The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT CITY OF CUPERTINO A Municipal Corporation LSA Associates, Inc �S By .y By Title `0 Ca r-6 dA (I' jT) Piu Ghosh, Sen or Planner Date Date s�20Ig I:ECOMMENDED FOR APPROVAL: // i l Aarti Shrivastava, Director Community Development Department APPROVED AS TO FORM: Carol Korade, City Attorney ATTEST: Grace Schmidt, City Clerk Attachments Exhibit A — Scope of Work EXPENDITURE DISTRIBUTION ACCOUNT NUMBER AMOUr(T 110 - 7301 -9327 $30,000 PO #� 1? 2 -� Exhibit A L 221 ASSOCIATES, INC FORT COLLINS PALM SPRINGS S. S LUIS FRANCISCO 2215 FII''r Fi STREET 510.54(1.73; {1 TEL FORT CO L P0[NT RiCHMON-0 S. SAN FRANCISCO BERKELEY, CALIFORNIA 74710 510.540.7344 FAX FRESNO RIVI:RSID,F. IRVINE ROCKLIN March 7, 2014 Aarti Shrivastava and Piu Ghosh City of Cupertino Community Development Department 10300 Torre Avenue Cupertino, CA 95014 Subject: Proposal to Assist the City with Monitoring of Mitigation Measures for the Apple Campus 2 Final EIR Dear Aarti and Piu: This letter briefly discusses the scope of work that LSA Associates, Inc. (LSA) is proposing to assist the City with the monitoring review and documentation for mitigation measures for the Apple Campus 2 Final EIR. Because it is very difficult to budget costs for this effort and identify the level to which the City will use our assistance and the expertise of our specialists, we are proposing that this contract be undertaken on a time and materials basis. We have identified hourly billing rates for staff that may be involved. We have provided a discussion of measures that we know we can assist with and issues we have identified below. As we have discussed, LSA can assist in the following mitigation measures (these mitigation measures are listed out in full and attached to this proposal). Please note that LSA is happy to assist wherever we can as the City and Apple move forward with demolition and construction, and Adam and Judy are available to strategize and consider how any particular mitigation measure is monitored and documented. To that end, the following mitigation measures should be considered a partial list: • Mitigation Measure 1310 -1: Conduct nest surveys during the nesting season (February 1 to August 31). • Mitigation Measure 13I0 -2: Review plans and confirm that bird safe construction techniques have been included in the final designs. • Mitigation Measure CULT -la: Review preliminary and final plans and ensure compliance with the City's stipulations regarding on -site relocation of the Glendenning Barn. • Mitigation Measure CULT -]b: Review preliminary and final plans and ensure compliance with the City's stipulations regarding off -site relocation of the Glendenning Barn. • Mitigation Measure CULT -2a: Review a Monitoring Plan for the project. • Mitigation Measure CULT -2b: Review the Monitoring Plan for compliance with archaeology protection and evaluation measures. PLANNING I ENVIRONMENTAL. SCIENCES I DESIGN LSA ASSOCIATES, INC. Mitigation Measure CULT -3: Review the Monitoring Plan for compliance with paleontology protection and evaluation measures. • Mitigation Measure CULT -4: Review the Monitoring Plan for compliance with human remains protection and evaluation measures. The mitigation monitoring review and documentation project will be staffed by the same LSA personnel working on the Apple Campus 2 EIR: Judith Malamut, Principal and Adam Weinstein, Associate /Project Manager. Judith and Adam by biological resources and cultural resources staff, and word processing and graphics staff as noted below. WORK PROGRAM APPROACH Our approach to the Biological Resources monitoring and the cultural resources monitoring is identified below. Biological Resources Monitoring: In order to implement measures to avoid impacts to nesting birds and to incorporate.bird -safe design guidelines into the buildings, LSA has developed the following tasks: • Conduct Preconstruction Surveys for Nesting Birds. Mitigation Measure BIO -1 requires that if construction occurs during the breeding (February 1 through August 31) a preconstruction survey for nesting birds will be conducted no more than 14 days prior to the start of pruning, con- struction, or ground disturbing activities. The surveys are to be repeated at 14 day intervals until construction is initiated. Given the large number of trees to be removed on the 176 -acre property, LSA has assumed that tree removals and construction will be phased. For each phase of work, the biologists will survey trees and other potential nesting habitat on the site looking for nests and signs of nesting activity. Active nests will be described including the location of the nest, species of bird using the nest, number of eggs or young, or nesting behavior observed. In cases where nesting behavior is observed but no nest is found a follow -up survey will be conducted to ensure that no active nests occur in the planned work area. Active nest locations will be noted on a map of the site and a copy of the map will be provided to the construction supervisor. • Monitor. Installation of Exclusion Zones and Active Nests. LSA biologists will monitor the installation of exclusion zones by the construction crews around active nests. Active nests will be monitored weekly to assess the progress of the nest and when the young become independent. • Prepare Annual Nest. Monitoring Report. LSA will prepare an annual report for submittal to the City and CDF W, documenting the results of the preconstruction surveys and nest monitoring that was undertaken to comply with Mitigation Measure B'IO -1. • Review Building Designs for Consistency with Bird -Safe Design Features. An LSA biologist will review the building plans and designs for consistency with the Bird -Safe Design guidelines cited in the Mitigation Measure B'IO -2. We will note features that are inconsistent with the guidelines. LSA .ASSOCIA'rEs. [NC. LSA proposes to conduct the nesting bird preconstruction surveys fora daily rate of approximately $1,600 per day. Monitoring of exclusion zone fence installation will be approximately $1,000 per day and active nest monitoring will be approximately $1,000 per day. This rate will include time for one biologist to conduct a one -day survey (8 hours including travel time) and preparation of a brief report of findings. An estimate of the number of days that are expected for each phase of work will be provided to the City prior to the initiation to the preconstruction survey, fence installation, or active nest monitoring. Coordination with the California Department of Fish and Wildlife will be billed on a time and materials basis if needed. If more than biologist is required to conduct the surveys, the additional biologists will be billed at $720 per day. The cost to prepare an annual nest survey report is estimated at $1,100. The report will be provided in Adobe Acrobat format (PDF). All maps will be hand - drawn. LSA estimates that the review of the building guidelines will take approximately two days for most building/building features and will cost approximately $2,000. Complicated designs or plans will require additional budget to complete the review. A brief report identifying areas that are inconsistent with the Bird -Safe guidelines will be prepared. Cultural Resources Monitoring: LSA has already assisted the City in monitoring Mitigation Measures CULT -la and CULT -lb (related to the relocation of Glendenning Barn) and Mitigation Measures CULT -2a, CULT -2b, CULT -3, and CULT -4 (related to the monitoring of construction activities to protect archaeological resources, and the evaluation of identified archaeological resources, fossils, and human remains). LSA conducted the following monitoring tasks for Mitigation Measures CULT -I a and CULT -1 b: Review of the following documents related to dismantling, documenting, and the temporary off -site relocation of Glendenning Barn: l) an undated disassembly /reassembly memorandum prepared by Bill Brown Construction that describes the procedures for disassembling, transporting, and reassembling the barn; 2) an October 18, 2013 letter by J. Gordon Turnbull of Page & Turnbull that: summarizes the results of a meeting between Mr. Turnbull and representatives of Bill Brovin Construction regarding the disassembly and transport of the barn; and 3) October 16, 2013 plans and elevations of the barn, which will be used to guide disassembly and reassembly. • Consideration of these documents in light of the requirements of Mitigation Measures CULT - 1 a and CULT - l b. • Preparation of an email summarizing LSA's findings. LSA conducted the following monitoring tasks for Mitigation Measures CULT -2a, CULT -2b, CULT - 3, and CULT -4: • Review of the Archaeology and Paleontological Monitoring and Discovery Plan for the Apple Campus 2 Project, prepared by Garcia Associates (October 2013) and consideration of this plan in light of Mitigation Measures CULT -2a, CULT -2b; CULT -3, and CULT -4. LSA A'SSOCIA'rES, INC. • Preparation of an email summarizing LSA.'s findings. LSA estimates that the work above was conducted for approximately $4,000. LSA could also review: • Final plans for relocation of Glendenning Barn to ensure compliance with Mitigation Measures CULT -la and CULT -lb; • Reports documenting identified archaeological and paleontological resources, and human remains; pursuant to Mitigation Measures CULT -2a, CULT-2b, CULT -3, and CULT -4; and • Construction contracting documents, to verify the inclusion of resource protection protocols, pursuant to Mitigation Measures CULT -2a, CULT -2b, CULT -3, and CULT -4. The above tasks would be conducted on a time and materials basis, not to exceed $30,000. BUDGET AND SCHEDULE For completion of the scope of work discussed above, LSA proposes a time and materials budget, not to exceed $30,000, to be invoiced on a monthly basis, given the parameters discussed above for the biological and cultural resources work. Adam Weinstein would continue as the Project Manager and primary contact for the City, and Judy Malamut would be Principal in Charge. LSA would provide a summary of work performed with each invoice. R'e expect the following staff to be involved in this monitoring review effort at the following rates: Judith Malamut, Principal $195 /hour Adam Weinstein, Associate $140 /hour Tim Lacy, Principal Biologist $I45/hour Matt Ricketts, Biologist g.95 /hour Tim Milliken, Arborist $90 /hour Andrew Pulcheon, Principal Cultural Resources 1125 /hour Tim Jones, Cultural Resources $95 /hour We look forward to continuing work with the City on projects at the Apple Campus. Please feel free to call or e -mail if you have any questions. Sincerely, LSA ASSOCIATES, INC. t q M-11 MIlpl Judith Malamut, A1CP Principal Attachment IV4* VV , Adam Weinstein, AICP Associate LSA ASSOCIATES, INC. Mitigation Measure BI0-1: A qualified biologist shall conduct surveys prior to tree pruning, tree removal, transplantation, ground disturbing activities, or construction activities on the site to locate active nests containing either viable eggs or young birds. Preconstruction surveys are not required for tree removal, tree pruning, or construction activities outside the nesting period. If construction would occur during the nesting season (February 1 to August 31), preconstruc- tion surveys shall be conducted no more than 14 days prior to the start of pruning, construction, or ground disturbing activities. Preconstruction surveys shall be repeated at 14 -day intervals until construction has been initiated in the area after which surveys can be stopped. Locations of active nests containing viable eggs or young birds shall be described and protective measures implemented until the nests no longer contain eggs or young birds. Protective measures shall include establishment of clearly delineated exclusion zones (i.e., demarcated by uniquely identifiable fencing, such as orange construction fencing or equivalent) around each nest site as determined by a qualified wildlife biologist, taking into account the species of birds nesting on- site and their tolerance for disturbance. In general, exclusion zones shall be a minimum of 300 feet from the drip line of the nest tree or nest for raptors and 50 feet for passerines and other species. The active nest sites within an exclusion zone shall be monitored on a weekly basis throughout the nesting season to identify signs of disturbance or to determine if each nest no longer contains eggs or young birds. The radius of an exclusion zone may be increased by the project biologist if project activities are determined to be adversely affecting the nesting birds. Exclusion zones may be reduced by the project biologist only in consultation with CDFW. The protection measures shall remain in effect until the young have left the nest and are foraging independently or the nest is no longer active. For any project - related activities involving the removal of trees during the nesting season, a report shall be submitted to the City of Cupertino and CDFW once per year documenting the observations and actions implemented to comply with this mitigation measure. (LTS) Mitigation Measure BIO -2: The project sponsor shall incorporate the following design features. (developed through a review of bird -safe design guidelines) into the project to reduce bird collisions: Main Building and North Tantau Structures From outside most buildings, glass often appears highly reflective, reproducing habitat and appearing attractive to some birds. To limit reflectivity and prevent exterior glass from attracting birds, the project shall utilize low- reflectivity glass (7 percent reflectivity, 0 percent ultra - violet transmittance). This low - reflectivity glass shall be used for the entirety of the building's glass surface (not just the lower levels nearest trees where bird collisions may be the most common) to provide additional avian safety. 1 San Francisco Planning Department, 2011_ Standards for Bird -Safe Buildings, San Francisco, California. Adopted July 14; Doeker, R., 2005. Bird -safe Design Practices. Website: ww-%v.birdsandbuildinjzs.org/docs/birdsafedesign.pd City of, 2007. Bird- Friendly Development Guidelines. Green Development Standard, City Planning, Toronto, Ontario, Canada; New York City Audubon Society, 2007. Bird Safe. Building Guidelines. New York, NY. Website: www.birdsandbuildings.org/ docs/ BirdSafeBuildingGuidelin (:s.df. LSA ASSOCIATES, INC. • The Main Building shall include 10 -foot -wide awnings at each story (or a similar feature) to create "visual noise" by covering windows and muting image reflections. • All indoor potted plants shall be placed away from the glass perimeter so that birds do not attemptto fly into the vegetation. • All roof mechanical equipment shall be covered by low - profile angled roofing so that obstacles to bird flight are minimized. • Interior light "pollution" shall be reduced during evening hours through the use of a lighting control system. Main Parking Structure and North Tantau Parking Structures • The above -grade parking. structures shall be designed with open -air fagades. No glass shall be utilized so birds can access open through- passages. Corporate Auditorium /Corporate Fitness Center • To limit reflectivity and prevent exterior glass from attracting birds, the project shall utilize low- reflectivity, glass (7 percent reflectivity, 0 percent ultra - violet transmittance). • Interior light "pollution" shall be reduced during evening hours through the use of a lighting control system. • The Corporate Fitness Center shall include 5 -foot wide awnings (or a similar feature) to create "visual noise" by covering windows and muting image reflections. (LTS) Mitigation Measure CULT -la (On -site Relocation): The Glendenning Barn shall be relocated to one of the following two sites within the Apple Campus 2 project site, subject to the approval of the City: 1) to the northeast of the Corporate Fitness Center, south of East Homestead Road or 2) at the proposed eastern termination of Pruneridge Avenue, near The Hamptons. The barn shall not be relocated to the second potential relocation site identified by Apple, to the west of the Central Plant, near the southwestern property line of the project site. This site is unacceptable to the City because it would be difficult to allow for the barn to be visible from a public right -of- way. The lead agency shall ensure that any adopted measures to mitigate or avoid significant adverse changes to the resource are fully enforceable through permit conditions, agreements, or other measures. The following stipulations shall apply to the barn's on -site relocation: • The following character - defining architectural elements of the barn shall be substantially visible from a public right -of -way, per the discretion of City staff: 1) size /scale of barn; 2) board and batten siding (including windows, if possible); and 3) roofline. • The new site for the Glendenning Barn shall include open space and /or land that can be converted to such use. The amount of open space shall be sufficient to reference the area's historic agricultural roots. • The Glendenning Barn shall be relocated by a qualified structure - moving company with experience, moving historic buildings. • Relocation of the Glendenning Barn shall be overseen by a qualified historical architect. The architect shall ensure that the barn retains its significant character - defining features at its new location, including its form, proportion, structure, plan, style, and materials. The LSA ASSOCIATES, INC. M historian shall be responsible for documenting relocation of the barn from its current, historic site to its new site. Documentation shall include production of a report that includes photographic documentation of the move and a historical context for the barn that describes the resource's significance in local history. Copies of this documentation shall be offered to local libraries and local historical societies, and submitted to the Northwest Information Center at Sonoma State University. • The Secretary of the Interior's Standards for the Treatment of Historic Properties (Stan- dards) shall be applied to the barn at its new location. The Standards consist of four possible treatments for historic properties: preservation, rehabilitation, restoration, and reconstruction. Depending on the nature of the barn's use at its new location and its current condition, one or more of these treatments shall apply. • The applicant shall provide a plaque, reader board and /or other educational tools to explain the historic significance of the barn on the project site. The plaque shall include the City seal, name of the resource, date it was built, a written description, and photograph, and shall be placed in a location where the public can view the information, not necessarily on the barn. (LTS) Mitigation Measure CULT -lb (Off -site ]Relocation): The Glendenning Barn shall be relocated off the project site to a new site within Cupertino, subject to the approval of the City. The lead agency shall ensure that any adopted measures to mitigate or avoid significant adverse changes to the resource are fully enforceable: through permit conditions, agreements, or other measures. The following stipulations shall apply to the barn's relocation: • The new site for the Glendenning Barn shall include open space and/or land that can be converted to such use. The amount of open space shall be sufficient to reference the area's historic agricultural roots. Appropriate uses of the new site could include educational uses determined by the City. Public access could be permitted and is encouraged, but is not required to reduce impacts to the resource. • If located on private property, the following character - defining architectural elements of the barn shall be substantially visible from .a public right -of -way or (if the barn and /or its surroundings are publicly- accessible) a public viewpoint, per the discretion of City staff: 1) size /scale of barn; 2) board and batten siding (including windows, if possible); and 3) roofline. • The Glendenning Barn shall be relocated by a qualified structure - moving company with experience moving historic buildings. • Relocation of the Glendenning Barn shall be overseen by a qualified historical architect. The architect shall ensure that the barn retains its significant character - defining features at its new location, including its form, proportion, structure, plan, style, and materials. The historian,shall be responsible for documenting relocation of the barn from its current, historic site to its new site. Documentation shall include production of a report that includes photographic documentation of the move; and a historical context for the barn that describes the resource's significance in local history. Copies of this documentation shall be offered to local libraries and local historical societies, and submitted to the Northwest Information Center at Sonoma State University. LSA ASSOCIATES. INC. • The Secretary of the Interior's Standards for the Treatment of Historic Properties (Stan- dards) shall be applied to the barn at its new location. The Standards consist of four possible treatments for historic properties: preservation, rehabilitation, restoration, and reconstruction. Depending on the nature of the barn's use at its new location and its current condition, one or more of these treatments shall apply. • The applicant shall provide a plaque, reader board and /or other educational tools to explain the historic significance of the barn, both on the off -site location and on the project site. The plaques shall include the City seal, name of the resource, date it was built, a written description, and photograph, and shall be placed in a location where the public can view the information, not necessarily on the barn.. (LTS) Mitigation Measure CULT -2a: The project applicant shall retain a qualified archaeologist to monitor project ground - disturbing activities. Prior to project ground - disturbing activities, the archaeologist shall prepare a Monitoring Plan for the project. The Monitoring Plan shall include: (1) a review of historical maps, photographs, soil inventories, and geotechnical reports to identify those locations where subsurface historical features may occur and areas of prehis- toric sensitivity and (2) a Discovery Plan that describes the specific methods and procedures that will be used in the event that archaeological deposits are identified. Archaeological monitors shall be empowered to halt construction activities at the location of a discovery to review possible archaeological material and to protect the resource while the finds are being evaluated. Monitoring shall continue until, in the archaeologist's judgment, cultural resources are not likely to be encountered. If deposits of prehistoric or historical archaeological materials are encountered during project activities, all work within 25 feet of the discovery shall be redirected until the archaeologist assesses the finds, consults with agencies as appropriate, and makes recommendations for the treatment of the, discovery. If avoidance of the archaeological deposit is not feasible, the archaeological deposits shall be evaluated for their eligibility for listing in the California Register of Historical Resources. If the deposits are not eligible, mitigation is not necessary. If the deposits are eligible, adverse effects on the deposits shall be mitigated. Mitigation may include excavation of the archaeological deposit in accordance with a data recovery plan (see CEQA Guidelines Section 15126.4(b)(3)(C)) and standard archaeological field methods and procedures; laboratory and technical analyses of recovered archaeological materials; prepara- tion of a report detailing the methods, findings, and significance of the archaeological site and associated materials; and accessioning of archaeological materials and a technical data recovery report at a curation facility. Upon completion of the assessment, the archaeologist shall prepare a report to document the methods and results of the assessment. The report shall be submitted to the City of Cupertino and the Northwest Information Center at Sonoma State University upon completion of the resource assessment. Mitigation Measure CULT -2b: If archaeological deposits are encountered during project subsurface construction when an archaeological monitor is not present, all ground- disturbing activities within 25 feet shall be redirected and a qualified archaeologist contacted to assess the LSA ASSOCIATES, INC. situation, consult with agencies as appropriate, and make recommendations for the treatment of the discovery. The project applicant shall inform its contractor(s) of the sensitivity of the project area for archaeological deposits. The City shall verify that the following directive has been included in the appropriate contract documents: "If prehistoric or historical archaeological deposits are discovered during project activities, all work within 25 feet of the discovery shall be redirected and a qualified archaeologist contacted to assess the situation, consult with agencies as appropriate, and make recommendations regarding the treatment of the discovery. Project personnel shall not collect or move any archaeological materials or human remains and associated materials. Archaeological resources can include flaked -stone tools (e.g., projectile points, knives, choppers) or obsidian, chert, basalt, or quartzite toolmaking debris; bone tools; culturally darkened soil (i.e., midden soil often containing heat - affected rock, ash and charcoal, shellfish remains, faunal bones, and cultural materials); and stone- milling equipment (e.g., mortars, pestles, handstones). Prehistoric archaeological sites often contain human remains." Adverse effects to archaeological deposits shall be treated in accordance with Mitigation Measure CULT -2a. (LTS) Mitigation Measure CULT -3: Should paleontological resources be encountered during project subsurface construction activities, all ground- disturbing activities within 25 feet shall be redirected and a qualified paleontologist contacted to assess the situation, consult with agencies as appropriate, and make recommendations for the treatment of the discovery. If found to be significant, and project activities cannot avoid the paleontological resources, adverse effects to paleontological resources shall be mitigated. Mitigation may include monitoring, recording the fossil locality, data recovery and analysis, a final report, and accessioning the fossil material and technical report to a paleontological repository. Public educational outreach may also be appropriate. Upon completion of the assessment, a report documenting methods, findings, and recommendations shall be prepared and submitted to the City of Cupertino for review, and (if paleontological materials are recovered) a paleontological repository, such as the University of California Museum of Paleontology. The project applicant shall inform its contractor(s) of the sensitivity of the project area for paleontological resources. The City shall verify that the following directive has been included in the appropriate contract documents: "The subsurface of the construction site may be sensitive for paleontological resources. If paleontological resources are encountered during project subsurface construction and a paleontologist is not on- site, all ground - disturbing activities within 25 feet shall be redirected and a qualified paleontologist contacted to assess the situation, consult with agencies as appropriate, and make recommendations for the treatment of the discovery. Project personnel shall not collect or move any paleontological materials. Paleontological resources include fossil plants and animals, and such trace fossil evidence of past life as tracks. Ancient marine sediments may contain invertebrate fossils such as snails, clam and oyster shells, sponges, and proto2:oa; and vertebrate fossils such as fish, whale; and sea lion bones. Vertebrate land mammals may include bones of mammoth, camel, saber tooth cat, horse, and bison. Paleontological resources also include plant imprints, petrified wood, and animal tracks." (LTS) I.SA ASSOCIATES, INC. Mitigation Measure CULT -4: If human remains are encountered during construction, the project shall implement Mitigation Measure CULT -2a (archaeological monitoring) to identify and treat any human remains that may be present. In addition, any human remains encountered during project ground- disturbing activities shall be treated in accordance with California Health and Safety Code Section 7050.5. The project applicant shall inform its contractor(s) of the sensitivity of the project site for human remains. The City shall verify that the following directive has been included in the appropriate contract documents: "If human remains are uncovered, work within 25 feet of the discovery shall be redirected and the County Coroner notified immediately. At the same time, an archaeologist shall be contacted — if one is not already on site — to assess the situation and consult with agencies as appropriate. Project personnel shall not collect or move any human remains or associated materials. If the human remains are of Native American origin, the Coroner must notify the Native American Heritage Commission within 24 hours of this identification. The Native American Heritage Commission will identify a Native American Most Likely Descendant to inspect the site and provide recommendations for the proper treatment of the remains and associated grave goods." (LTS)